Strict Scrutiny - Mifepristone Stays on the Market (live from Tribeca!)

Episode Date: June 17, 2024

Live from New York, it's Strict Scrutiny! Elie Mystal guest hosts with Kate and Melissa in front of a sold-out crowd at the Tribeca Festival to break down opinions, perform dramatic readings of the secret Alito recordings, and imagine some end-of-year yearbook pages for the justices. Plus, New York Magazine's Irin Carmon joins to talk about the practical effects of the Supreme Court's ruling in the mifepristone case.To watch the full episode, complete with Martha-ritas and yearbook superlatives, head to our YouTube channel Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. 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 legs. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts today, coming to you live from the Tribeca Festival in the great New York City, the greatest city in the world. I'm Kate Shaw. And I'm Jade Chong. And I'm Melissa Murray. And you know that we are without our beloved co-host, Leah Lippman,

who is back in Michigan recovering from a very bad bike accident. And we really wish she were here at Tribeca. She would have loved this. But we're sending her lots of warm wishes for a quick recovery. And in the meantime, we have an absolutely amazing guest host. We needed someone who could really fill Leah's big shoes. And we think this is the person to do it. He is a fantastic guest, friend of the pod, and he's going to be an even better guest host, even though he's not a natural blonde.

Please join me in welcoming New York Times bestselling author and nation commentator, Ellie Mestal. Thanks for having me. Go blue. All right, so here's what we've got in store for you today. We will start with the opinions that the court released this morning. We will then turn to a healthy segment of court culture, which includes a nostalgia trip back to strict scrutiny high school. But before we go all the way back to high school, we're going to start with what the court gave us on Thursday. So let's start with opinions. And we have a big one to start with.

And for the first opinion we're going to break down, we have a very special guest to help us do that. The great Erin Carmon. Irin, welcome to Strict Scrutiny. Irin is a senior correspondent at New York Magazine. She covers gender and law and politics. She is the author of a book I suspect you have heard of, The Notorious RBG. And right now she's working on a book due out next year, will soon be a book you have heard of, and it's called Unbearable, Being Pregnant in America. Great title right? She's also the perfect person to help us break down our first opinion. So you've probably guessed the first opinion that we're going to break down is FDA versus Hippocrate Hippocratic FDA versus

Alliance for Hippocratic Medicine. This case involves the future of the availability of mifepristone, one of the drugs in the two-drug medication abortion protocol. Mifepristone was approved by the FDA in 2000. So over... Quarter century, basically. Yeah, basically a quarter century. This drug has been available and the FDA has approved it.

But some folks took that personally. And as we have discussed on the podcast, within weeks of the court's decision in Dobbs back in 2022, a group of anti-abortion doctors filed a lawsuit in, you guessed it, Amarillo, Texas, to get mifepristone pulled from the market entirely and also to challenge some of the regulations that the FDA issued during the

pandemic to increase availability of mifepristone, including allowing it to be dispensed through the mails. And those activists had a really good time in Amarillo. They put on a great show and America's chief scientist cum jurist, Matthew Kaczmarek, sided with them and declared mifepristone an unauthorized drug. Full stop. The end. The Fifth Circuit then took a look, and in an act of sort of very infrequent judicial restraint, the Fifth Circuit actually did not go as far as Judge Kazmarek in the district court did, did not side with the challengers in declaring Mifapristone a totally unauthorized drug, but did invalidate some of the more recent regulations that relax some of the restrictions on mefapristone. So that decision was appealed to the Supreme Court. The Supreme Court actually

put that decision on hold while it considered and then decided the case. Melissa, what did it do? Well, I hate to say I told you so. No, you don't. My husband is like, that's not true at all. Like, you always say I told you so. We did tell you. So we called this from oral argument. So this is a unanimous opinion from the court written by our favorite father of daughters. Our favorite basketball coach. And basketball coach.

Coach Cav. Coach Cav. Brett Kavanaugh wrote this unanimous opinion for the court, and he concluded, as we predicted, that the Alliance for Hippocratic Medicine lacked standing. They were not the proper plaintiffs to bring this suit in federal court. So that's the opinion set up. Erin, we would love to talk with you about this decision, the law, and how we even got here in the first place. So as a practical matter, what does this decision, which does not get into the substance of this challenge, like whether or not the FDA's approval of mifepristone and the regulations that were later released around mifepristone, whether or not they were invalid,

it's just a decision on jurisdictional grounds. What does this mean as a practical matter for those seeking to end pregnancies in the United States? The shitty status quo remains. All right. Okay. So, as we learned from Dobbs, it could always get worse. Since the Dobbs decision, physicians, activists, people on the ground, abortion funds have been moving heaven and earth to get people the abortions that they need. In banned states and even in blue states where clinics are overloaded, abortion pills have been a lifeline for people who are seeking to end their pregnancies. It provides people a choice and sometimes it is the best and only choice. So I think it's also important to say that not everybody would choose medication abortion versus an in-clinic abortion,

but in the reality that we live in now, that is better than the proverbial coat hanger. And so whether that's happening through telemedicine and someone's driving across a state line, and they just have to be in a parking lot, they don't need an appointment. They can just have telemedicine there. There's been an enormous expansion of capacity. Six in 10 abortions now take place through this method. And so that can continue to happen. And we have not heard all of the stories about how brutal it is out there for someone who is looking to no longer be pregnant. I am sure there are many, many, I know for sure there are many, many more stories that we have not heard yet. But to the extent that nobody is known to have died, and there's some cases maybe that have been reported,

but let's just say an epidemic of death has not taken place due to self-managed abortion because of this safe option, because of telemedicine, and because of all the work that activists are doing on the ground to try to get, to an extent, not everybody, the abortions that they need. And by the way, can I just say, since you said the Alliance of Hippocritical Medicine. I said Hippocratic. I said Hippocratic.

OK. But I feel like this is the perfect forum to tell the story that when I worked at MSNBC.com, I published a story about ADF, the Alliance Defending Freedom. We've heard of them. Yes, you haven't yet mentioned them, but they are, you know, they gave us both Judge Matthew Kaczmarek and this case and the supposed Alliance for Hippocratic Medicine. They cooked all of this. And so usually I would not brag about my corrections but I had a similar Freudian slip

which is that I referred to them in print I got an email from their publicist politely telling me that I had called them the alliance against freedom and then were you like I said what I said like I swear to god I didn't do it on purpose but something in my brain the heart wants what the heart wants. He was really nice about it. You know what? They always are. They always are. The devil's a charismatic motherfucker. Yeah, he still, you know what? He was still trying to convert this

Jew. So, you know, the question sort of answers itself in what you just said, Arun, you know, why the focus on Mephepristone? It has stepped into the breach in many ways, right? Post-Dobbs, it has provided the only realistic way of accessing abortion care in big swaths of the country, you know, even where, again, as you say, it might not be people's first choice. Is Mifepristone and other attacks on Mifepristone? So we know that, we'll talk about the standing in a couple of minutes,

but we know that this is a jurisdictional decision. It doesn't say anything on the merits of the challenge. Are ADF and other like minded entities, you know, right now regrouping and figuring out what the next set of challenges are going to look like? And if so, what is that? So I think it's really important to understand this lawsuit as part of, we should be thinking about them as blue state abortion bans, because these medications are already not available in red states, at least not through the legal medical system, at least not to end a pregnancy. Well, can we just say, at least not through the legal medical system, right? But of course, people in red states do, there are ways to access abortion pills if you travel across

state lines and in other ways through the mail. So certainly, I don't know to tell you this, but there are ways to get abortion pills that people are availing themselves of, of course, in red states as well. Well, this is part of my answer to your question, because look at the interveners from the red states, from Kansas, Idaho, and Missouri, who are going to be the next phase of this, which is that they're explicitly saying

that they understand that activists are, and this is happening, grassroots activists, of of course they are mailing pills through with instructions about how to safely end a pregnancy because this is a matter of justice and harm reduction and because the science says and I think you know everyone in this room probably knows this but it bears repeating because there's so much propaganda this is a highly studied, extremely safe medication. Any claim that there is harm is purely politicized and not based on any fact. It is just about wanting to keep people pregnant who don't want to be pregnant. So as a result, yes, you have people who are in extra-legal grassroots activism mailing pills to red states.

You also have what I described, which is that abortion providers have been able to increase capacity and there's startups that are doing telemedicine that make it much easier. Because even if you lived in a blue state when Dobbs came down, you could not get an appointment at a clinic because everybody was coming in there from all of the other states. So they understand that the way in which to exert their will, I seem to remember somebody talking, was it Brett Kavanaugh, about the Democratic will and how important it was to defer to it? Well, this is an attempt to end-run the Democratic will in states like the one we're sitting in right now

that have expanded access to abortion. And a backdoor national ban on abortion is the ultimate goal. Now, whether the court is going to give it to them or whether they're going to get it through the next election, perhaps that's why we saw some strange message discipline today. I know you guys will have more to say about that. But I think where this is headed is, okay, something this flagrant has not been accepted. But there have many avenues that could follow this. And the ultimate agenda they have made walking into an abortion clinic even here in New York City unbearable they have made it a gauntlet they would now like to invade

your medicine cabinet and that is much harder to do so choking off the supply to cut off a private and less hard, less criminalizable, if that's a word, method of ending a pregnancy is going to be something that they don't give up on just because they lost today. Speaking of private, do you think that we win this case without Danco? And just to remember, this is not just about the abortion pill. This is about whether or not the FDA approval process is allowed to continue. And you know who cares about that? Pfizer, Eli Lilly, Big Pharma, right? So is this, do we think that... Wait, wait, are you suggesting that the court's antipathy for abortion might be overridden by its appetite for corporate interests? I'm just saying, I'm just saying, as much as I

would like to think that this is a victory for abortion rights, I can just saying, I'm just saying, as much as I would like to think that this is a victory for abortion rights, I can't help but notice this is also a huge victory for big pharma. So do you think that this case... For your emotional support billionaire.

Yeah, I mean, I think it's true in as much as it's the standing stuff that you were going to explain a lot better than I will. But to be honest, I think that my faith in sort of the ultimate win ability of the big pharma guys was undermined during COVID. I mean, Pfizer suddenly became their villain. You know, pro-business interests were shelved because of the supposed autocracy of getting people vaccinated. And then obviously the court had a couple of cases like that. So I think that there are limits to it. I think that if you're Brett Kavanaugh,

he seems to really worry about being liked. We've talked about this. Yes. Every decision that I read of his is always like, ladies, ladies. Pick me. Don't be mad at me. I'm such a nice guy. And so I don't know, to me, but if you're him, you have so much time to do this. Why wait until Trump wins why not wait until you know that the only question is why they were in such a hurry on Dobbs when they could have waited one or two cases and he was apparently according to the reporting the one pushing behind the scenes for that so I guess I don't think it's big pharma so much as a rare instance of Sam Alito not choosing to sputter this time and some message discipline on the part of Republicans who don't want to raise the salience of this issue any more than they already have before a presidential election.

They know what year it is and they know what's happening in November. And that, I'm sure, is part of the story here as well. Well, so maybe we'll just take a couple of minutes on standing. Look, it sounds dry. It now, in hindsight, is like, well, of course, this we'll just take a couple of minutes on standing. Look, it sounds dry. It now, in hindsight, is like, well, of course, this case was always going to be thrown out on standing grounds. They had a preposterous, ludicrous theory of standing. That's all right.

But I think we're still going to spend a couple of minutes on it. What was it? Like the doctors have an interest in the aesthetic value of watching babies be born? It was. What about the pro-life dentists? No, that's real. The pro-life dentists? Yeah. No, that's real. The pro-life dentists.

That's right. So just, you know, this is a case that got to the Supreme Court at all because the district court and then the Fifth Circuit accepted these preposterous claims of injury. And I don't want us to lose sight of that. Ellie, can you just remind everyone a little bit of what exactly was going on in the lower courts? Because this is ADF fever dream material, but it has been accepted by multiple Article III judges. And we have to take the prospect of it being accepted by a Supreme Court in a different case quite seriously, I think.

So what actually did the lower courts find here? Okay, let's go back to Amarillo. Let's go back to the emperor of Amarillo, Matt Kazmarek, who is this kind of crazy religious wingnut. And the standing argument was simply that women were too ashamed of their own choices to actually sue against the abortion pill makers, that they were so sad and shameful that they had to have some other outside group sue on their behalf those poor little ladies. And the outside group that had to sue were this group of doctors and dentists called the Alliance for Hippocratic Medicine, none of whom took the abortion pill, none of whom prescribed the abortion pill. They had nothing to do with

it, right? Now, look, I am no expert on the human gestational process, but if you are getting pregnancy advice from your dentist, like, the person you should be able to sue is your eighth-grade sex ed teacher, not Danco, the makers of the abortion pill, right? So, but Kazmarek, as we talked about, he says, no, the standing argument is okay. They can sue on behalf of the little ladies who are too embarrassed to sue. Then it goes up to the Fifth Circuit and James Ho,

this motherfucker here, this guy is the guy who decides that the real reason why they're standing is because there is something called an aesthetic injury that is suffered by people who just like seeing pregnant women in their bellies when fetuses are aborted. Now, this kind of standing actually does exist in environmental cases, right? Like, if I go to a beach, I can say, like, oh, why is there oil all over my beach? I'm injured. I can't enjoy the beach. And so Ho was using that kind of standing

and applying it to women like they were freaking cockatoos. So I just want to quickly read what Ho actually wrote. And I'm going to do my best David Attenborough voice here because, like, that's how you have to imagine this guy thinking, right? Unborn babies are a source of profound joy for those who view them. Expected parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of unborn children. Doctors delight in working with their unborn patients.

Doctors delight in working with... and experience aesthetic injury when they are aborted. Plaintiffs' declarations illustrate that they experience aesthetic injury when they are aborted. Plaintiffs' declarations illustrate that they experience aesthetic injury from the destruction of unborn life. That was the literal, legal reasoning behind this fucking case. You're cheering for Ellie's's performance not the substantive argument

for your consideration so in a nutshell that is what the court unanimously reversed that absolutely batshit theory of standing um but i want to just underscore this decision serves a number of really important political purposes. We've talked about this on the podcast ad nauseum, but whenever the court pulls back from something that the Fifth Circuit, which we affectionately call a meth lab of conservative grievance, because that is exactly what it is, whenever the court pulls back from whatever extreme nonsense the Fifth Circuit has put out, it has the effect of making the court pulls back from whatever extreme nonsense the Fifth Circuit has put out, it has the effect of making the court look reasonable. That's not what's going on here. So we already know that it's an election year. That's one thing that might be served here. And this is

one reason I think why the court wants to project the image, the patina of moderateness. But I also think we have another major abortion case that's still waiting in the wings. And that, of course, is the Amtala case. And I think it's very likely that the court is about to deliver an absolutely catastrophic decision about the collision of federal laws requiring the provision of emergency care, including abortions and very draconian state laws like the one in Idaho. So this is just kind of the calm before the storm, before we get that, I think. Can I just quickly jump in? Because I was thinking about this as I fearfully anticipate the Amtala case, how you on the one hand have this totally made up notion of harm where these doctors can't even

plausibly make up a way in which they are harmed by people accessing the abortion pill under these you know evidence-based standards and at the same time you have actual harm that's taking place every single day of people being denied emergency care women being denied miscarriage care being medevaced in Idaho, bleeding out. We had just the decision in Texas, which denied these women emergency abortion care, harming their fertility, harming their mental health, harming their physical health. And so what a funhouse mirror, this phony notion of harm, which fine, OK, the Supreme Court disdained, but it got pretty close. It got all the way there, was not laughed out of a few courts, versus the real life suffering that it feels like every single day brings us a new account of. Yeah, Ellie, how do you think the media is sort of

accounting, if at all, for the fact that EMTALA is still out there in the wings as everyone kind of digests this decision? Look, I do this stuff every day and I cannot get people to care enough about this case because the Amtala case is the one that's killing people, all right? Like, understand, when we're talking about this law, we're talking about whether or not a person who is pregnant can go into the emergency room and get life-saving care. And the Idaho law says that she can only get care if she's at death, right? And you've ever talked to your insurance company. It's difficult to convince your insurance company, right, that you need a leave, right? And you have to now convince bean counters that you are literally about to die before they will

perform medically necessary abortions. Since Idaho put this law in place, six women, as of when this case was argued, six women have had to be air-vacced out of Idaho into another state to save their lives. And that case is still out there. of a moderate, reasonable court, everything I heard from oral arguments suggests that they are about to make it so you cannot get medical care in red states unless you can fill out a form in triplicate saying that you're at death's door. And that is the case that is going to kill people. So the TLDRs don't have a week-long celebration over this. It's a sort of status quo decision. Nothing really changes, and you gird your loins for what's coming next, and something bigger is likely coming. I said this was a unanimous opinion, and it was, but there is a concurrence. The concurrence was written by none other than Justice Clarence Thomas.

And to my mind, this is the real news about this case, because Justice Thomas signed on to the judgment. But in the separate concurrence, he indicated that he would have gone further. Right. He would have gone further to completely eliminate the court's third-party standing doctrine. And generally, standing doctrine asserts that only the party who has been injured can assert his or her own rights, and you cannot raise the claim of a third party in federal court. However, in certain circumstances, the court has allowed for third-party standing, where third parties can bring claims on behalf of other people. And the principal case in which this third-party standing doctrine was announced is a 1958 case called NAACP v. Alabama.

And as you might glean from the time frame and the parties to the litigation, it's a case with a really racialized valence. So the NAACP was organizing in Alabama the Montgomery bus boycotts. You might have heard of it. They were trying to get black students to integrate the University of Alabama. All of this was happening and the state of Alabama wanted to stop it. So they sued the NAACP. And as part of that lawsuit, they subpoenaed the NAACP for its membership roles.

And this would have obviously disclosed publicly the names of all of the African Americans and white people who were sympathetic to the cause of integration to public shaming on maybe more than that a racialized violence was a very real prospect and so the NAACP sued to prevent the disclosure of their membership roles and the United States did they think of just making the likes anonymous for the Like without helped I mean yes just a whole a whole list of Jane does they could have done that all true um this goes back to your point Ellie um you know I think there is something about the idea of bringing a lawsuit in your own name especially when the content of that law school can be something that is very publicly fraught, like abortion or in this case, segregation. The court held in NAACP versus Alabama that

the publication of the rules would have violated the 14th Amendment. And that's the seeds of the third party standing doctrine, the idea that in certain circumstances, you have to allow for organizations or third parties to present these claims on behalf of their members. And abortion has been a very vivid context in which this has happened. Most of the big abortion cases that you have heard of outside of Roe versus Wade have been brought by organizations like Planned Parenthood, for example, because it's very difficult for individuals to bring these claims. And the fact of public shaming or ostracism or economic consequences can actually deter individuals from bringing these claims. And the fact of public shaming or ostracism or economic consequences can actually deter individuals from bringing these suits. And that means these laws

won't be challenged. Justice Thomas effectively said in his concurrence that he would rethink all of third party standing. And he noted in his concurrence that as he sees it, just as abortionists lack standing to assert the rights of their clients, doctors who oppose abortion cannot vicariously assert the rights of their patients. So note the use of abortionists, note the use of clients rather than patients.

I really have to hand it to this guy. Maybe Beyonce should have sent him the tickets to the Renaissance concert, because this guy. Maybe Beyonce should have sent him the tickets to the Renaissance concert because this guy took all of the lemons of this case and made a sour ass batch of pro-life lemonade with it. And even though no justice signed on to this concurrence, we all know it's going to happen. This is going to be farmed out to the Fifth Circuit where Jim Ho is going to shepherd this into an actual theory that eventually makes its way to the court. This third party standing or associational standing notion underlies a lot of litigation, not just abortion, but civil rights, environmental. There

is a whole swath of litigation that Justice Thomas would very much like to see the courts wash their hands of. It's like the Venn diagram, civil rights, black people, and abortion. Get rid of it all. Yeah, if you could do it all just In this one lone concurrence, which again, it's easy to shrug off as a lone concurrence. And I think we've now all seen this story play out too many times to make that mistake. A lone Thomas concurrence does not stay a lone fringe view for very long on this court. Melissa noted this, the use of the term abortionist. It is totally really different from the majority opinion. It is interesting. You mentioned Alito, Arlito,, of course the author of Dobbs. He doesn't join that concurrence. He doesn't write separately

He he's got some things going on. Right? So there's so I was gonna ask Aaron To speculate about why why Alito is not writing He's not joining Thomas and that the tone does seem to be a very measured one. Obviously, you have Alito and Jackson and Kagan and Sotomayor. Everyone is together in this opinion on a standing question, but an underlying abortion case. So curious if you have any guesses about the internal dynamics and then just any kind of final thoughts about the case. I'm so curious. I mean, of course, I was reading that dry as dust Kavanaugh opinion, thinking like, what is the drama behind this? Because obviously for the Democratic appointees it's the best case scenario, given

the court's composition. The bar is in hell. The bar is indeed in hell. But, I mean, it's just so interesting because I can't think of a case like this in which Sam Alito has exercised restraint. And I don't know if it is...

He's been tied up with flags at home. You know what? He's capable of Virgonia. No, definitely not. There may be just a long game. I mean, I still go back to the fact that when they leaked Dobbs, I thought, like, surely some of this language

will be softened. And then it came out like they did some copy edits. It was verbiage. I'm still shocked by that. Yeah. And so that makes the restraint shown today even more perplexing. I mean, Ellie, you and I were talking about this earlier. What is to come?

Yeah. And that's why I'm really worried about Antala because I think that Alito doesn't hold his fire here if he also is losing Antala. Yeah, and maybe he wrote Antala. And so he's like, alright, have your little pills. I'm gonna kill you. Like, I think that's what he that's why he's able to like chew with his mouth closed for an entire

opinion today. Which he usually can't do. And with Mephepristone, I mean, I mentioned this earlier, it may be that he's reading the polls and he just feels like, why don't I wait a few months? I mean, they didn't talk about, we didn't really get into this too much. They didn't talk about Comstock that much, despite dwelling on it tremendously during the oral argument.

And so do they, I mean, Ed Whelan, 30 seconds after the opinion goes down, tweets saying, well, it doesn't matter because we're going to have that Comstock interpretation from the Justice Department that will allow us to ban abortion pills and any other abortion implements. And so maybe Sam Alito is feeling pretty confident. Usually he still can't help himself. So I'm like, what's going on here? But it does show that there's like a little bit of John Roberts even in Sam Alito where they just don't want to raise the salience of this so obviously losing issue for them. And I got it. You know what, I'm going to rat out my editor. I covered the Mifepristone

oral argument before I went on book leave. And I was like, great, I got to cover this MTALA argument. He's like, don't have the bandwidth. You know, so to your point, I didn't and I ended up doing TV about it, but I didn't end up writing about it for New York Magazine. And so I do think that to the extent that they're holding their fire for that, they understand that the stakes of that, for reasons I actually find very hard to understand, because for me, women bleeding out and having to be medevaced, it sounds pretty fucking bad. But nonetheless, it was a busy news cycle. There was a lot of other things going on in my editor's defense. And so I think that to some extent, they are sensitive to those broader media currents

that you called out. And I'm very scared for this country and for what bile will emit from Mr. Justice Alito. All right. So on that uplifting note, thank you, Irin, for joining us. So happy to be here. Thank you, guys.

We got some other opinions, and these two sort of track in that moderate 3-3-3 consensus-driven court as well. So, Kate, what's the next opinion? Wait, the math of this opinion is really, really hard. You cannot put the math of this opinion on me. No, I'll do the math. No, no, I'll do it. Just I'll do the math. Just not 333. This is one of these unbelievably confusing lineups. But it's nominally unanimous. Yeah, there's a lot going on in there. Yes. We'll get to it. Okay, so what is the case? We will just quickly remind you. So the case is called Vidal versus

Elster, colloquially known as the Trump too small case, which references a memorable exchange between then presidential candidates Donald Trump and Marco Rubio. Anyway, after all of that, an entrepreneur named Steve Elster made some Trump Too Small t-shirts and tried to register the phrase Trump Too Small as a trademark with the U.S. Patent and Trademark Office. The PTA refused to register the mark on the ground that there is a provision of federal law that actually forbids the registration of a trademark that identifies any living person without that person's consent. Obviously, Donald Trump did not consent to the Trump too small trademark. But Elster argued that preventing him from registering that trademark actually violated the free speech clause of the First Amendment.

And the court, in an opinion authored by Justice Thomas, concluded that the Lanham Act's name clause does not violate the First Amendment. And the court, in an opinion authored by Justice Thomas, concluded that the Lanham Act's name clause does not violate the First Amendment. And notably, the court and Justice Thomas relied on a quote-unquote history and tradition approach to trademark regulation in the United States. So it's basically Bruin, but make it trademarks, right? Same idea. Again, I would love to tell you exactly what the breakdown of the justices was in this opinion, but honestly, I'm so confused, so I'm just going to read it out loud to you.

Thomas Jay announced the judgment of the court and delivered the opinion of the court, except, as to part three, Alito and Gorsuch joined that opinion in full. Roberts and Kavanaugh joined all but part three, and Barrett joined parts one, two A, and two B. Kavanaugh filed an opinion concurring in part in which Roberts joined. Barrett filed an opinion concurring in part in which Kagan joined, in which Sotomayor joined as to parts one, two, and three B, and in which Jackson joined as to parts one and two. Sotomayor joined, as to parts 1, 2, and 3B, and in which Jackson joined, as to parts 1 and 2. Sotomayor filed an opinion concurring in the judgment in which Kagan and Jackson joined.

That is an LSAT logic puzzle. Like, what? I don't know what the holding of this case is. So Mr. Elster loses. That we know. That we know. And it's a little hard to do the math on, like, what parts of the reasoning of the opinion are are law and which ones are just kind of essays, musings. There is a decent amount of consensus, but there's also a lot of disagreement that's methodological, right?

So Justice Sotomayor writes a concurrence. She agrees this mark should not be able to be registered, but it does read much more like a dissent. And she is really concerned about the fact that the court is using this history and tradition method that it used to a degree in Dobbs and really used in Bruin, the gun case from the same term as Dobbs, in a First Amendment case, which it has never done before. And to my mind, a turn to history and tradition in the First Amendment context is actually very scary. So if you think about pre-New York Times versus Sullivan, right, which is an important constitutional case that protects the press from spurious defamation suits, makes it hard to sue the press for mistakes.

Who does not like New York Times versus Sullivan? I feel like I remember. Oh, yeah. Oh, yeah. It's Thomas. And Gorsuch is on board now, too. So you at least have two who have said explicitly they would like to see that opinion overruled. But it's not even just Sullivan. I mean, think about, you know, our founding era laws were very inconsistent, some of them with contemporary notions of the First Amendment. So you had the Alien and Sedition Acts, which literally criminalized criticizing your opponents, like it criminalized political speech. And that's if we're looking to sort of see what has been tolerated historically under the First Amendment. I just think that's a very scary moment to be in, given sort of the rest of the political landscape. And yet I do think that's what this opinion suggests. Again, it's like Marco Rubio. It's like this little quirky case. And yet I think it has the seeds of very, very, very ominous notes about how First Amendment claims might be adjudicated going forward. So I'm curious, Ellie, any thoughts on am I being paranoid about the possibility of the exportation of this Bruin history and tradition analysis to First Amendment law, every other body of law?

I guess like what could possibly go wrong? Yeah, no. Originalism and this new history and tradition valence, I like to analogize it to the one ring of Sauron, right? It cannot be used for good. And anybody who wields it is corrupted by it, right? So even, and this is the thrust of Kagan's concurring dissent opinion, right? Where she's saying, yes, you've gotten to the right outcome,

but you've gotten to the right outcome based on this horrible reasoning that will only lead to badness in the future. So here's the reasoning how you can get to this right outcome without taking the ring and being instead a very good hobbit. Will Kagan's view win out? The hope, right, is that in the long run, when people need to refer back to this decision, to the extent that it has precedential value, they'll refer back to Kagan's concurrence as opposed to Thomas's majority opinion. I'm really interested in the Barrett concurrence. I don't even know if it's a concurrence.

I don't know what it is. Again, this whole makeup and breakdown is hard. The Barrett concurrence seems really interesting in that she seems to be rejecting this whole idea of history and tradition in favor of something that is more contextual, practical, and keeps in mind contemporary realities. And I just wonder if that is giving us some kind of insight to where she is and what we might see in the Rahimi case, which, again, this question of history and tradition really loomed large, and whether or not we can look at historic firearm regulations to consider whether or not someone who has been served with a DV restraining order

should have a gun. Yeah, no, I've always thought we have Barrett on Rahimi. I've always been relatively... Well, and there's a real gender schism here on the history and tradition approach. Shocking, I know. Women don here on the history and tradition approach. Shocking, I know. Women don't like the history and tradition approach. No, I've always thought we were going to have Barrett and Rahimi, and I do agree that her concurring thingy

suggests that she's on board. Because remember, in Barrett's world, it's okay to take guns away from bad people because Jesus doesn't want them to have guns, right? So she understands that once you've made the moral problem of being a criminal, we can do anything we want to you. So I've always thought we had our Rahimi. I will say that, I mean, this is something that's been happening in the media a lot. Barrett is the one to watch for the rest of this term going forward, Barrett is the one to watch. She... I have a friend who said that

she's like a Disney princess who was made real and is starting to realize the men who made her real might suck. Maybe. But she still is a Disney princess and still wants to look. And so we're trying to figure out,

and the rest of this term will tell us a lot about whether or not Barrett is kind of an independent thinker or if she really is just Leonard Leo's marionette. The problem is she just joins silently sometimes, right? She does not write enough in her own voice, and I am so curious to see. Because the sea witch took it. That was good. I guess we just don't know yet whether, you know, Lady Safehaven is our moniker for Justice Barrett. And I was going to ask whether in light of, you know, the Mephibristone case, we obviously need to see Amtala.

But I think it's possible that we do that, you know, the Democratic appointees are that Barrett is with them on both Imtala and Rahimi. But of course, that does not necessarily tell us about whether the moniker is wrong more broadly. So I think that we have yet to see. But I do love the Disney princess. The five-four man-woman split, we saw it once last term. We saw it in the Colorado ballot access. Even though Barrett was kind of like, oh, we shouldn't be so mean to the nice to the men. She was still fundamentally like with the women response to that case. So we could be seeing the beginnings of a 5-4 man-woman split on the Supreme Court. And if they try to shove that down our throats with more decisions taking away women's rights, taking away access to abortions, it's going to look even worse for them. All right, let's go to the last case that we got on Thursday. The court

handed down a nominally unanimous decision in Starbucks versus McKinney. And many of you will remember that the case arose out of the push to unionize Starbucks across the country. So there were seven Starbucks employees who were unilaterally fired from the Starbucks where they worked because they were trying to unionize their co-workers. And this caused some issues. Right. So this case, obviously, that's a sequence of events we've seen in a lot of places. This one grew out of an effort to unionize a Starbucks in Memphis. So this group became known as the Memphis Seven. They say they were, again, fired in retaliation. And the issue in this case is really what the National Labor Relations Board, or NLRB, has to establish in order to get a preliminary injunction

against an employer, essentially to make an employer rehire individuals that makes a preliminary finding were unlawfully terminated because of union activities. Just what is the standard for a preliminary injunction in a case like this? The statute at issue, the Wagner Act, just doesn't say. It says that the court should grant such temporary relief as it deems just and proper. And Starbucks was basically saying the test should be a more demanding one in order for the agency to get one of these injunctions. And, you know, of course, that's because the standard makes it easier for the board to force employers to hire back employees who've been fired for trying to unionize. And Lisa Blatt represented Starbucks. And she was arguing for this traditional four part test out of a case called Winter, which asks basically has the court balance all these factors to decide whether a preliminary injunction should be issued rather than a more relaxed approach that had previously been used in some cases involving the NLRB, including this one.

And in oral argument, it seemed like Lisa Blatt had this court eating out of her hand, right? I mean, like this was a full-on court drinking the pumpkin spice lattes. Like they very much were into this, with one exception. Justice Jackson seemed more skeptical of Starbuck's position. But all to say that it wasn't really a surprise that the court issued a sort of unanimous opinion that, again, was written by Justice Thomas. He's very moderate now. Look into it. Justice Thomas embraced the four-part winter test that Starbuck Starbucks endorsed. And I say though that it is a nominally unanimous decision because Justice Jackson, who again was most skeptical of Starbucks'

position, also weighed in here and filed a partial concurrence and a partial dissent. And interestingly it's longer than Justice Thomas's majority opinion. And I don't want to say there's bad blood between these two people, but I'll let you decide. I mean, it seems like they're working some things out. So her separate writing actually sort of thinking about her and labor cases reminded me of her solo descent in a case called Glacier Northwest, which was also a case involving unions and a work stoppage in that instance. And it has this very distinct articulation, you saw something similar in that case, of her view of the importance of the capacity of government, the capacity of agencies, of deferring to agency expertise. And the NLRB

was the agency at issue here, but it seems like she's making a broader set of points. So she says, let me just read one quote. She says, I'm loathe to bless this aggrandizement of judicial power, where Congress has so plainly limited the discretion of the courts, and where it so clearly intends for the expert agency it has created to make the primary determinations. So what do you think? Was she talking about just this case? She's not talking about pumpkin spice lattes. I mean, she's talking about this court and deference to agency, maybe even the entire Republican Party and Marjorie Taylor Greene,

and its complete disdain for anything related to science. Well, it seems like she's also saying, without saying, obviously Chevron is being overruled and I'm going to go down really screaming about it. I mean, it's like pretty explicit, I thought there. These are her Chevron safe words. Right, in the same way that I think Alito is holding his tongue because he won an EMTALA,

I think Jackson is writing here because she lost Chevron, and she's starting that process of getting people to think about it differently. I mean, her comments in this case, she did the same thing in the Mif Pristone case of oral arguments. Like, she has been consistently saying, we should let the agencies decide, and I think that's all going to come to head in Chevron. And to me, it's just a question of whether or not she's writing her own descent or whether or not she's they're giving it to soin de mayor

on seniority to do it all right um another win for lisa black congratulations um i'm not touching that one no i mean like i mean that i mean genuinely she's she's a very good advocate she's really good. Good for her. We have a ton of court culture to cover, so we're going to dive right in. And we got some interesting new tidbits on l'affaire d'alito,

or d'affaire in the original german so on monday rolling stone released a story with more scandalito news and here's what we learned on june 3rd lauren windsor someone rachel maddow has described as an advocacy journalist attended a dinner at the supreme court historical society she did this on the up and up she purchased a ticket she attended the event under her real name she is apparently a dues-paying member of the historical at the Supreme Court Historical Society. She did this on the up and up. She purchased a ticket. She attended the event under her real name. She is apparently a dues-paying member of the Historical Society. And while she was there, she spoke with Justice Alito and Martha Ann Alito. In doing so, she presented herself as a religious conservative, all while secretly recording them. And it's pretty wild stuff. We are likely to include a recording of the actual

audio in the podcast that will drop on Monday morning. But I think this is actually going to be more fun for you. We're going to give you the details. Wait, Melody's going to swap in the recordings for our dramatic readings? Well, our favorite thespians, Melissa and Allie, are going to read it. And maybe Melody, in her infinite wisdom, will decide. We'll use the actual audio or maybe you guys will make the cut. I don't know. I don't make these decisions. That's way above my pay grade. But you all here will get to hear this dramatic reading.

The stakes are high, guys. The pressure's on. Okay, so Strict Street and Theater. I'm going to play Lauren Windsor. Ellie, I think you should play Sam Alito. Okay. Alright, get into character. Okay. Alright, ready? I into character. Okay. All right. Ready?

I hate everybody. Okay. Good. All right. Okay. And scene. So anyway, I just wanted to tell you, my husband really wanted to be here, but he had the last minute business thing.

And he was just like, make sure that you tell Justice Alito that he's a fighter and we really appreciate it and he has all the grit. And I know it's just got to be terrible what you and your family are going through right now. So I'm just so sorry. Thank you. Thank you very much. I appreciate you. I know you don't remember this at all,

but what I asked you about was about the polarization in this country, about how do we repair that rift? And considering everything that's been going on in the past year, you know, as a Catholic and as someone who, like, really cherishes my faith, I just don't. I don't know what we can do to negotiate with the left in the way that needs to happen for the polarization to end. I mean, I think it's, like, a matter of, like, winning.

I think you're probably right. On one side or the other, one side is going to win. I don't know. I mean, there can be a way of working, a way of living together peacefully, but it's difficult. You know, because there are differences on fundamental things that really can't be compromised. They really can't be compromised. They really can't be compromised.

So it's not like you're going to split the difference. And that's what I'm saying. It's just, I think the solution really is like winning a moral argument. Like, people in this country who believe in God have got to keep fighting for that. To return our country to a place of godliness. I agree with you. I agree with you I agree with you and seen we're not putting any recordings in. I can understand how people can hear that and

think like oh that sounds so bad. But nothing Alito says surprises me because I've actually read his opinions. But what he's saying there is that he does not think we can live in a pluralistic society. He does not think that we can peacefully live with people that we disagree with. They are not flying the coexist flag. They're not doing that. And it's a shocking thing for a Supreme Court justice, one of the nine most powerful people in the country, one of the most unaccountable people in the country, to literally say on tape that he's not sure that we can peacefully coexist. Like, if you don't think that, then get the fuck out

the job and let somebody who thinks that we can peacefully coexist give it a try. Okay, so let's contrast that recording with what happened when Windsor posed similar questions to Chief Justice John Roberts. Once again, I'm taking myself mostly out of this. Melissa is going to play

Lauren Windsor. I know my limits. Ellie is going to play the Chief Justice. And scene. But I did want to ask you specifically, with everything that's going on right now, it's a very tumultuous time in the country. And I'm just curious, from your perspective on the court, how do we start to repair the polarization?

You know, the first thing I think is to tell me, when was there a non-tumultuous time? When has that been here? I mean, you look at the court. You look at what the court is doing in the 60s. You look at what the court is doing in the New Deal. What the court was doing, you know, after Dred Scott and all this. And it's a regular thing.

People think it's so different and special. It's actually pretty tumultuous For a long time Vietnam And this motherfucker said that I'm not making this Just ended a sentence with Vietnam So you think like this is a normal period? You know

I don't know if it's normal But I mean since I've been here all of the 20 years, there have been quieter times, but the idea that the court is in the middle of a lot of tumultuous stuff going on, that's nothing new. I mean, I guess I wouldn't say that it's not. It's not like it's an

innovative thing. It's not new. I guess I just really feel like we're at a point in our country where the polarization is so extreme that it might be irreparable. You sound sound like crazy bitch right now instead what he said was oh i don't think polarization that extreme is like the civil war we did that during Vietnam people were getting killed and I was there in Vietnam it's like this is all right I mean it's not all right but it's not like dramatically different as people this is a common thing people with their own perspective think this is so extraordinary uh I don't know. But you don't think there's a role for the court in guiding us toward a more moral path?

No. I think the role for the court is deciding cases. If I start, would you want me to be in charge of guiding us towards a moral path, a more moral path? That's for the people we elect, not for the lawyers. Well, I guess I just believe that the founders were godly, like they were Christians. And I believe that we live in a Christian nation

and that our Supreme Court should be guiding us on that path. Right now in Robert's mind, you can just see the danger, danger, danger. I don't know if that's true. Yeah, I don't know that we live in a Christian nation. I know a lot of Jewish and Muslim friends who would say, maybe not. And it's not our job to do that. It's our job to decide cases as best we can. It's a much more modest job than I think people realize.

And scene. So, you know, so we contrast the two scenes, right? Like, the second one there obviously is. Now, maybe he just, like, knows an obvious sting when he sees one. That's a plausible theory we must consider. He's watched The Wire.

He knows. But also, like, it's plausible that, you know, a justice might be somewhat guarded when asked by a rando if he would like to participate in establishing a Christian ethno-state. Like, maybe. Maybe, you know, imagine a justice acknowledging the country consists of more than just Christians. Because the bar is actually at hell. Yeah, no, that we're celebrating this. But I actually, like, I think that, you know, the contrast is actually at hell. Yeah, no, that we're celebrating this. But I actually like, I think that, you know, the contrast is really important to identify. And, you know, just to say another word about that, Alito is literally embracing that the court's

role is at least in part returning the country to a place of godliness, like that seems to be what he is saying. And Roberts obviously does reject that framing. But again, I don't want you to think that we are John Roberts apologists. And in some ways, I think that this exchange, the contrast kind of underscores how grossly negligent Roberts is as chief justice right now, because I think he knows exactly what Sam Alito is doing and how Sam Alito sees the role of the court. And he is doing nothing to curtail it. He is giving Alito cover when Congress tries to exercise oversight authority.

He is assigning Alito cover when Congress tries to exercise oversight authority. He is assigning Alito important opinions. And so in some ways, I think that everything Alito says in this conversation is also on John Roberts. Okay, but so back to the Historical Society. Again, this is an event that happened, you know, a week ago. If you're having a November 2022 flashback, you're on the money. This society was featured prominently in early New York Times reporting about the justices, this time about conservative efforts to basically get close to and provide emotional support for the conservative justices to shore up their metal. And this was one of the conduits, the society, for conservatives to get FaceTime with the justices and their wives. So enter one of the wives. Okay, so in addition to talking to Justice Alito and the chief, Windsor also strikes up a conversation with Martha Ann

Alito, and it was as spicy and salty as you would imagine. So let's hear some of this. I actually am going to play a role here, but it's going to be a minor one. Okay, so I'm going to play Lauren. Melissa is going to be Martha Ann. Get excited. Okay. Oh, you're doing it. Yeah.

I think so. Do you feel like Melissa has stolen a part you were born to play, Martha Ann Alito? I was ready for Martha Ann, but go ahead. Why don't you do Lauren? Yeah, Melissa, you do Lauren and give Allie Martha Ann. All right. I was ready, FYI. Okay, ready. Go ahead. Why don't you do Lauren? Yeah, Melissa, you do Lauren and give Allie Martha Ann. Alright. I was ready,

FYI. Okay. Ready? Ancine, I'm a huge fan of your husband. I just want to see what you're going through. It's okay. It's okay. It's not okay. It's okay, because if they come back to me, I'll get them. I'm gonna be

liberated. I'm going to get them. What do you mean by them? There's a five-year defamation statute of limitations. I don't actually know who you mean by they and them and get them. The media. The media. And scene. This is not a bellish. These are the actual words of the transcript, just to be clear.

All right. For this next clip, we really need to pull some receipts. And this is from our June 3rd episode when we were analyzing Justice Alito's letter slash screed to Senators Durbin and Whitehouse. So I will read this dramatic reading. He notes here that he quote, implored his bride to take it down once he saw that old... Oh, this is what I said. This is Melissa right now. So we will...

Were you dramatic reading you? I was dramatic reading me! This is so meta! I love this! Do you want me to read your part? Yeah! I'll read Melissa. This is weird! I'm not going to do it justice.

But okay, so I will read. This is Melissa from our episode right after the letter that Alito sent that like purported to explain the first episode of Flaggate. Okay, I am now Melissa. He notes that he implored his bride to please take it down once he saw that old glory was flying upside down. And Martha was like, no, no, I do what I want. And for several days, it remained in that upside-down posture. While she refused to bring it down,

as her husband, a sitting member of the Supreme Court, had requested. And again, I'm not doing it for Melissa. Let me try. You'd pause here. And again, this detail prompts me to ask, why are justices who cannot seem to control their own wives so intent on controlling other American women? Or have I answered my own question? Is that really just the answer?

Right there, like that, explains Dobbs in a nutshell. Like, I can't control her, I'm going to control all of you. Fine. Genius! Give it a Pulitzer! Amazing! All right, so with that fresh in your ears, again, that's Melissa's take right after the flag reporting and the letter. Listen to this other thing Martha Ann said to Lauren Windsor at the same Historical Society dinner the same day the episode came out. So episode is released that morning. This conversation happens that night.

And again, we will have, how are we going to cast this? You're going to do? Ellie's going to do Martha Ann. Okay, all right. The other thing is the feminazis believe that he should control me. So they'll go to hell. He never controls me. And scene. So just a general question.

Am I the feminazi in question? It's me. I. I'm the problem. It's me. There is a non-zero possibility that Martha Ann is either a friend of the pod or more likely hate listens or has someone hate listen and feed her morsels because it really sounds like what Melissa was saying on the episode that dropped that day. They want him to control me.

I think she misunderstood me. No, but I just want to, like, if she's listening, Martha Ann, if you're listening, I don't know if we're the feminazis she's referencing, because I just want to say that every person with a uterus and the capacity for literacy pointed out the incongruity, indeed irony, of one Sam Alito waxing lyrical about his wife as a rights holder and decision-maker and joint property holder and had real difficulty reconciling that with his status as the author of Dobbs. I mean these were obvious connections to draw. So I don't know if it's just me. I mean, these were obvious connections to draw.

So I don't know if it's just me. I think a lot of people were noting the incongruity of these two things. And you, I think, now get to defend yourself. So she says that the Nazis weren't. I said what I said. I said what I said. So it was your point that he should control her.

No, my point was not that he should control her. I think she ought to control herself. But to be very clear, my point was not that he should control her. I think she ought to control herself. But to be very clear, my point was simply that I don't want Sam Alito to control any woman. At all. Ever. I mean, am I asking too much? No. Okay. And yet, here we are.

There's one more exchange. Okay. Just more? There's just one more. But we have to play it. And I honestly don't know what to make of it. So let's do this once again. Wait, who's going to be Martha Ann for this last one?

Okay, you got it. Sorry, Ellie's playing here. You're a guest. But he's been practicing all day. Okay. All right. All right. And scene's been practicing all day. Okay. All right. All right.

And scene. They're persecuting you, and you're like a convenient stand-in for anybody religious. Look at me. Look at me. I'm German. I'm from Germany. My heritage is German.

You come after me, I'm gonna give it back to you. And there will be a way. It doesn't have to be now. But there will be a way. They will know. Don't worry about it. Insane.

No one should ever quote their German heritage in that way ever. That is no longer allowed. They lost the privileges to do that. Okay, so I just want to say, the last time the Germans and the Italians teamed up, it was not good. Not good. Not good. And actually, I said that with the last exchange, there is one more exchange

we're going to play because... Oh, really? Oh, yes. How could I forget? Because it's Pride. We should play this. Yeah, we have to.

For Pride. It also demonstrates what a vexillologist, which is a word I only learned in the age of the affair Alito, like a flag expert, but it shows

what a vexillologist she is. Vexillito? I'm not sure. We're workshopping. Taking all suggestions. Yes. The portmanteau of those two. But, okay, Ali, once again,

you definitely get to play Martha Ann for this clip. Take it away. You know what I want? I want a sacred heart of Jesus flag because I have to look across the lagoon You know what I want? I want a sacred heart of Jesus flag. Because I have to look across the lagoon at the pride flag for the next month. Exactly. And he's like, oh, please don't put up the flag. And I said, I won't do it because I'm deferring to you.

But you are free of this nonsense. I'm putting it up. And I'm going to send them a message every day. Maybe every week. Which is longer than every week. I'll be changing the flags. There'll be all kinds. I made a flag in my head.

This is how I satisfy myself. I made a flag. It's white and it's yellow and orange flames around it. And in the middle, the word, vergogna. Vergogna. In Italian, it means shame. Vergogna. V-E-R-G-O-G-N-A. Shame. Shame. Shame! I have no idea what an incredible mark I need to smoke.

I mean, it's giving Hannah Waddingham a septa anella in Game of Thrones. Where is Cersei? That is really bad. Can I flag another weird tidbit? Yes. Okay. All right. So at one point during this conversation, Martha Ann started talking about how much

she hates the media. But she didn't focus on Jodi Kantor or the reporters at ProPublica. She focused on, wait for it, the Washington Post fashion correspondent, Robin Givhan. And this is a Pulitzer Prize winner, okay? And it seems like Martha Ann Alito holds a grudge like some people hold a microphone. Because back in 2006, when the Alitos were going through the whole confirmation process,

Robin Given wrote a column dissecting the Alitos' fashion choices. And she included this line about Mrs. Alito. There is nothing particularly fashionable about her clothes, not in the sense that they reflected some contemporary trend, but they were familiar and reassuring because they are the sort of clothes that populate office complexes, PTA meetings, and the closets of many a working mother. I don't think it's that bad, honestly, but it seems that Martha Ann Alito really took that personally. So 18 years after that column first appeared in print, Robin Givon is still living rent-free in Martha Ann Alito's head. And she's very annoyed. She went on and on about how annoyed she was with Robin Givon, which makes me ask, is Martha Ann Alito a head. And she's very annoyed. She went on and on about how annoyed she was with

Robin Givhan, which makes me ask, is Martha Ann Alito a Virgo? We tried to figure this out. We were Googling her. I Googled her all day. I can't find a single one. But you feel pretty sure. This is very Virgo energy. I'm a Virgo, and I know. Anyway, let's move on from that aspect of court culture. Let's talk about their disclosure forms. Okay. So we're briefly gonna talk about about their disclosure forms which are ordinarily like you know in days of your typically pretty boring affairs um but they are they've gotten more interesting in you know recent

filings so the group that we got last week first kbj clear winner yeah clear winner yeah what did she get Beyonce tickets yeah like personally from Beyonce I mean of course game recognized game right like of course and she disclosed them she did not keep them to herself like I was just hanging out at the renaissance concert like she was just like no because she's ethical she was ethical and she said so fine what else John Roberts most boring man in the universe or at least John Roberts has the most boring friends in the universe like nobody even thought to like

give him like a gift voucher to Ace Hardware right like he got nothing right I would I would imagine when Roberts

and his like posse assuming he has one like when they do Secret Santa like I bet they just like leave each other

like affirming notes you're great. No one ever tell you you're different. It was pathetic. I felt bad for John. He needs better friends. So another little tidbit. It's sort of a non-tidbit in the disclosures.

Alito has requested an extension for filing his financial disclosures. He does this every year. Yeah, but this time he might be busy negotiating with his wife, you know, Congress, et cetera. I'm not sure, but we don't yet know if there's anything interesting in the Alito household's disclosures. Justice Thomas updated his 2019 disclosure forms. In case you're wondering,

that was five years ago. So just now he's updating them and he notes in his disclosure for 2023 that he sought and received guidance from his accountant and ethics counsel in the additional information or explanations section. Apparently, in 2019, he had inadvertently omitted a trip to Bali with Harlan Crow, as well as a visit to the Bohemian Grove in Northern California, also with Harlan Crow. FYI, we been knew this because ProPublica told us about it. All right, so this had already been revealed. He also disclosed a gift of two photo albums from Terrence and Barbara Giroux.

Terrence Giroux was the executive director of the Horatio Alger Association, which Thomas serves on the board of. And Justice Thomas also hosts an annual ceremony for this group in the grand courtroom of the Supreme Court. Interestingly, these two photo albums were valued at $2,000. What kind of photos were these? Genuine question. Inquiring minds want to know. I got nothing. They're marble covers. Like what? I have no idea. What kind of photos are these? Like her Brits? I don't know. Like Dave LaChapelle? I don't know. I don't know. I don't have those kind of white

friends. I got I got the more simple white friends. It's sus. It's sus. That's all I'm going to say. It gives me like a PlayStation gift card so I can buy like a season on Destiny. Like that's my white friend. That's all I'm going to say. It gives me like a PlayStation gift card so I can buy like a season on Destiny. Like that's my wife. That's a good friend.

I don't know what you just said. Look, I think the overall thing here though is that some of these gifts smell of corruption. And some of these gifts smell of just what friends give to other friends. And we can't make a decision about that because Congress refuses to pass an ethics bill that would outline what the Supreme Court justices can and cannot take. It should be so freaking simple to just write a bill and say anything below $2,500, nobody cares about. Anything above $10,000, you just can't take. So can we give some props to the Senate Democrats who did, I think, try to get in front of this?

And there's no way in hell that their bill is going to be passed, right? They know that. But I do think the fact that they offered up this bill that would sort of try to rein in the court and put some ethics guardrails around is their attempt to make the court part of the political valiance going into the election. And I think that's a really important development for them. They need to campaign on it and they need to push it. But yes, I like it's it's the like you were talking about the bar being in hell like this.

This is clearing a bar that's set in hell. But yes, the very first step to ethics reform is admitting you have a problem. I think we know that. Okay. We definitely have a problem. And can I say two more things about Congress? I mean, one, I do think that obviously you need both houses of Congress to pass a bill. And so there's a limit to what Senate Democrats can do right now. But what doesn't require cooperation from the other house is oversight. And the Democrats control the committees, they control judiciary and oversight and committees that could actually do much, much more to try to get John Roberts. So, you know, there was this exchange we've talked about on previous episodes, where Alito steps in and writes the letter about the flag. And then Roberts steps in and says, every basically every justice, you know, decides for themselves when to recuse. So it's not the Thomas Gift stuff, but obviously it's all related. And as far as I know, Roberts had the last word. They just said, okay, I guess you're not going to talk to us. And I don't think they can let that stand. I think they need to. If an executive branch agency got an oversight request, they would negotiate. So

Roberts could send a staff member or they could submit written questions and require his response. I don't think they can just let him have the last word or all of that kind of like hardens into law. That's how, you know, interbranch relationships work. And so I think that's hugely important that the senators do that. And also the Democrats are in the minority in the House. But I do think that Jamie Raskin, AOC, there are people who are getting very, very focused on judicial ethics and they do have a bill, but obviously they're not going to be able to pass it unless they have a majority in the House. So that obviously, it's such a critically important issue. And I think that congressional Democrats are actually finally really focusing on it. The question now is what are they going to do? All right.

That was really heavy, Kate. Thanks. We want to leave the audience on a lighter note. Okay. So, all right. We want to get you ready to go out into the world and really fight the good fight. And so we spent a lot of time doing strict scrutiny, but we really have to let you know that this is not our primary job. Like, we actually have day jobs, and some of our students are here. You know our day jobs are that we are law professors. And so we love this time of year when the students leave.

I mean, not like that. Sorry. That came out wrong. Sorry, not you. When our students graduate and they go off to do really great things. And in fact, in the house tonight, we have some high school students from the Trinity School who have just completed a seminar on the Supreme Court under the tutelage of their indefatigable professor, Dr. Rachel Halper. Welcome to those students. Please don't tell your parents that I was cursing.

I didn't realize. You have just finished up your school year and you're going to do amazing things. And we wanted to honor you and all that you've accomplished with a little homage to the high school experience. So that's right folks, it's graduation season at Strict Scrutiny and we are going to go back to Strict Scrutiny High where we are going to kick it old school with Washington DC 20543. Are you ready? That was a 90210 reference for everyone born after 1997. And for Leah, we are feeling so high school right now. Let's flip through the SCOTUS yearbook, shall we? Let's do it.

Okay. In the tradition of high school seniors everywhere, each justice has the opportunity to post a meaningful quote alongside their graduation photo. And we thought we might help each of them out by suggesting a meaningful quote for each justice and ellie came up with all of these so exactly we're going to let him read all of them so ellie let's begin all right so you guys start with the chief and as we know his his so for him we've got the way to stop racism is ignore racism, which definitely is something that I think the 18-year-old Roberts would have said. It works. Next we go to the most senior justice, Clarence Thomas.

Show me the money! That's clearly all he's doing. And then we get to God's servant on earth, Samolito. So he would probably use a quote from the King James Bible. And the rib which the Lord hath taken from a man, and made he a woman, and brought her unto a man. And the man probably said, great, now everything can be blamed on her. So saith the Lord. Next up is Professor Murray's

girl, Sonia Sotomayor. And Sonia Sotomayor is one of the most important justices that we have for criminal rights defense. So I believe she would say something like, I will not condemn a man on the say-so of a fascist thug who runs around at night night dressed up as a bat

violating civil liberties zero chance any of batman's convictions hold up in some way wait melissa does that does that check out no i think that's right i think that's right uh next is my uh former uh civil procedure professor elena kagan um. She made me cry many times. We're all textualists now, which is a problem because some people refuse to learn how to read. It's absolutely something she probably would have said to me in school.

For Neil, I was thinking he would most likely quote something from Beowulf or the Canterbury Tales. But the quote for him is, the illegal we do immediately, I was thinking he would most likely quote something from like Beowulf or like the Canterbury Tales right but the quote for him is the illegal we do immediately the unconstitutional takes a little longer which is a real quote that's his actual yearbook quote that I didn't make that one up that's that is literally what Neil Gorsuch said in his actual high school yearbook so think about that for a second.

Let it wash over you. Let's do that. Now we get to Justice Brett. Aww. Samuel Adams is my favorite founding father, especially Oktoberfest. Wait, wait, wait. Me know that not real money.

Okay, to be clear, this was not actually Brett Kavanaugh's quote. Just Neil's. All the others are creatures of Ellie's invention. Next is the handmaid, Amy Coney Barrett. So we gave her a quote from The Handmaid's Tale. There is more than one kind of freedom. Freedom to and freedom from. In the days of anarchy Freedom to and freedom from. In the

days of anarchy, it was freedom to but now you are given the freedom from. Don't underrate it. That is literally Aunt Lydia from The Handmaid's Tale. Let's sign on an up note, please. Last old girl. And can you read this one because I can't read. I can't do

this correctly. I love this picture. I just actually, I'm like, you know that bitch when you cause all this conversation. That is Beyonce and that is KBJ. Okay. All right. That's a good note to end on. Okay.

All right. Yeah. The occasional uplifting note is important. You take your joy where you can get it. All right. Well, thank you, Tribeca. And take your joy where you can get it. All right. Well, thank you, Tribeca. And thanks to all of you for spending your evening with us. We've got a couple of things to say before we go.

One, if you are craving more humor and legal insights, this time from yours truly, I'm not going to do voices, but I am going to be a guest host next Wednesday on Pod Save America with Jon Favreau and Jon Lovett. So tune into Pod Save America. Fresh from Survivor. Oh, is this going to be his first show back? No. No. Great. Exactly. Well,

either way, I'm excited about it. Before then, I have one assignment for you, which is make sure to subscribe to Pod Save America wherever you get your podcasts. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, me, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell. Our associate producer is Michael Goldsmith. Our intern this summer is Hannah Saroff.

With audio support from Kyle Seglin and Charlotte Landis with music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. Matt DeGroote is our head of production. And many thanks to our digital team, Phoebe Bradford and Joe Matusky. Subscribe to Strict Scrutiny on YouTube to catch full visual episodes. And you can find us at YouTube.com forward slash Ask Strict Scrutiny Podcast. And if you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you really want to help other people find the show and piss off Martha Ann, please rate and review us.

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