Strict Scrutiny - No Jonathans Or Pauls

Episode Date: February 24, 2020

Boston University School of Law put together an amazing live show! Leah, Melissa, and Jaime are joined by two fabulous BU law professors, Sarah Sherman-Stokes and Danielle Citron (MacArthur genius and Strict Scrutiny ninja). The group proclaims victory for gender parity and previews two cases (US v. Sineneng-Smith and Seila v. CFPB) before discussing Danielle's work on deep fakes and taking a question from the wonderful audience. This event was recorded live at WBUR CitySpace in Boston. Thanks to WBUR and BU for the very warm welcome! 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 necks. Welcome to a very special episode of Strict Scrutiny. It is our second ever live show, and we are doing this one at Boston University School of Law in the absolutely lovely CitySpace space.

Thank you for having us, WBUR. You guys are the best. And thank you, Boston University, for such a warm welcome. So we have a super exciting show today. Yes, we do. So we're going to cover some breaking news. Then we are going to do two case previews, Sinanang Smith and Selah versus CFPB. And then we are going to do an interview with Professor Danielle Citron, strict scrutiny super fan. And genius. MacArthur genius. And also recently appointed strict scrutiny ninja. And she will be showing you some of her strict scrutiny ninja skills when we get there. No pressure. All good. So should we start with the breaking news? Let's do it. Okay. So for those of you in the legal profession, as we assume many of our listeners

are, though not all of them, you probably heard about the congressional hearing that happened last week, February 13th, in which, among other people, former law clerk to Judge Stephen Reinhart, Olivia Warren, testified about her experience in chambers, which included extremely severe, serious, pervasive sexual harassment. We are going to come back to talking about this more in a later episode, just because we don't have the time to discuss all of the things that I think are important to discuss in this particular episode. But also because I think a lot of what is important about her testimony we can only talk about on a longer time horizon when we see, for example, what happens as a result of it

and how people respond and what they do after she very specifically described all of the many obstacles she encountered in trying to report the harassment to different possible entities or persons. Yep. And I'll just add, so I had testified before the Senate Judiciary Committee on similar issues about two years ago. And I think one of the frustrating parts for me is seeing kind of how uneven the progress has been on this stuff. And I think the, you know, there are some circuits that have done a lot of work. The DC Circuit has done a, you know,

a pretty good job at making changes. There are other circuits that have done not very much. And I would say overall, I think that the judiciary has been a little quick to take a victory lap, especially when they have no data, none whatsoever, zero, to demonstrate any kind of change, cultural change that has occurred. They have not done any workplace climate surveys as a whole to kind of see, cultural change that has occurred. They have not done any workplace climate surveys as a whole to kind of see how are people feeling? Are people still concerned about retaliation? Do people feel like there are adequate reporting avenues? So that's been the

most frustrating aspect to me. But as Leah said, we're definitely going to talk about this more on future episodes. So before we segue, can I just say, I know that law schools and law professors in particular have borne, I think, the brunt of this, of the critique, right? Just that law schools and law professors have not been as transparent as they might be with prospective clerks, haven't alerted their students to the dangers. Law schools especially have been pushing students toward clerkships because it is an important credential for the law school to be able to say that they have these really robust numbers of clerks. And I think all of that is true.

And, you know, I have been certainly guilty of encouraging my students to pursue a clerkship. I mean, I also encourage students to clerk. Just to be clear, though, I mean, I think the transparency thing is hard because I think there's uneven information. And while I knew many things about Judge Kaczynski, for example, I'd heard things over the years, I had never heard this about Judge Reinhart,

which raises the point that misconduct can come in lots of different forms. Like lots of people knew that Judge Kaczynski could be untoward because he did it publicly and often in a very humiliating manner for the clerk who was the victim of it. Apparently, Judge Reinhart did all of this very privately. So you might not have known the extent of it all. I mean, all I ever heard was that it was a hard clerkship, like just sort of, you know, punishing in terms of the workload. I still come back to, regardless of what law schools or law professors may know about the transparency, I think it is not just incumbent on law schools to do something here. In both the case of Judge Kaczynski and Judge Reinhart,

I think the court had a huge role to play in this. I mean, these were two very prominent feeder judges. And to the extent that people continued to send their students to them, whether they knew or not, it was because those two clerkships were well regarded as safe and assured conduits to Supreme Court clerkships because the justices routinely took their clerks from the ranks of those two chambers. But then I wonder, how were the justices supposed to know about the conduct that was happening in those chambers? Because I don't know that I can expect a clerk of these justices to confide in them about their experience the prior year but that's where I do think law professors or law schools might have had some role to play because after you clerk for a judge or justice you develop a different

relationship with them and you might then be in a position to share with that justice what your experience in your prior clerkship was like. And so that is one possible avenue that would have allowed the Supreme Court to do something about the fact that they were enabling these judges. So I think that's probably right for something like Reinhart, where it may not be publicly known, but the Alex Kaczynski thing is. I mean, like that was, I think, very well known. And it wasn't like they stopped drawing their own clerkship choices from the ranks of those. I mean, like if you limit the market, nobody's going to want to clerk for that person. I mean, and like if this happens all the time, I mean, like law and economics, like who who knew I could talk about this. But when you

like if you limit the demand for it, the supply will shrink too. And the judge might get the sense, like if the, if the supply of prospective clerks dries up that, you know, I've got to change behavior. And I think for me, I am less, I know that there is a kind of a lot of kind of blame going around. I'm less interested in that. And I'm more interested in trying to speak about what law schools and law professors and the court and the judiciary and mentors and everyone can do to address this for the future. I mean, that's my primary concern. But I do think you have to reckon with the past to get to the future. Right. In order to figure out how we prevent the same

thing from happening in the past, we have to figure out what led to this happening in the past i just don't want students to be like you know what i'm done with clerkships because i think they're incredible especially for first generation or minority law students these are such credit like important credentials that can level the playing field and in introduce you to a network that you otherwise might not have. They're incredibly important. So I also, before we segue, I just want to put down two placeholders, perhaps, for our future discussion.

One is, just to make it explicit, because I feel like part of this has gotten lost just in the fallout from the hearing, is to underscore how brave it was for Liv Warren to testify before Congress. It is impossible to overstate how much courage and strength it took for her to do that. And I remember before she testified, I was talking to her and I told her that she should expect to be hurt or disappointed in ways and by people that she didn't expect just based on like my own experience. Sorry, I didn't mean, this is so awkward. And she said that like, that's still true that's how how she feels now and she said it's okay for me to share that so I'm not sharing something that she wouldn't want shared

but um you just get a sense that like when you see some of the responses and the reactions to her testimony that some people wish this wouldn't have happened or wish it wouldn't be out there and what also seems to have gotten lost is the second part of her testimony, which is the utter failure of all of the institutions that were the places for her to go to report to do anything. One, when she tried to report to them, she tried to report to the law school, she tried to report to the new judicial office for workplace conduct and integrity in both places did nothing or like rebuffed her advances and then the other option was for her to report to other nine circuit judges when her own experience

was that these nine circuit judges were deriding the accusers of judge Kaczynski and the accusations against him and they were not going to do anything if it was against one of their friends and you know this woman went before Congress. She said what happened when she was asked questions. She had the, you know, strength and like lawyerly skills to make a joke about canons of legal interpretation. I mean, just the sheer superpowers and character and lawyerly skills of this woman are impossible to overstate. And that is one thing that I wish would be more foregrounded in what people are talking about with respect to the hearing. And the second is just the second part of her testimony, which is the failure of these

institutions and people to do anything when she tried to tell them what was happening. Co-signed. In the early part of February, we learned that Judge Deborah Batts of the Southern District of New York had passed away. And Judge Batts was truly, truly a trailblazer, an African-American woman. She's a graduate of Radcliffe College and Harvard Law School. And when she was appointed to the bench in 1994, she was actually the first openly gay judge in the entire United States. She's truly a trailblazer in almost every aspect of her professional life at the Cravath law firm as an assistant U.S. attorney. She's the first African-American professor on the faculty at Fordham. joined the Southern District of New York, she presided over some notable cases, including the civil litigation involving the Exonerated Five, also known as the Central Park Five.

In that litigation, she rejected the New York City's motion to dismiss that lawsuit, and it actually resulted in the city settling with the Exonerated Five in 2014. She was set to preside over the embezzlement trial of Michael Avenatti over whether or not he embezzled $300,000 from Stormy Daniels. But she passed away in her sleep in early February. She survived by her wife, Dr. Gwen Zornberg, and two children, and many friends and family who miss her and love her, including Justice Sonia Sotomayor, who recalled that they had both been recommended to federal judgeships on the same day. And as she said, from that day forward, we became sisters. She lived her life openly and earnestly with fortitude and conviction. So rest in power, Judge Bass.

So I can turn this to a bit more optimistic and exciting breaking news. It's been kind of a downer. It's been, but this is going to cheer you up all right we have finally achieved gender parity ladies for the february oral argument sitting women have as many arguments as men named paul yes yes queen yes incredible and when you think about it this is huge progress over january when there were more men named jonathan arguing in the january sitting than there were women arguing in the january sitting so just in one month right that's huge huge what a difference of paul make yeah i love that i love like way to go so yes so uh the the, in the calendar there are 24 oral argument spots. Women are arguing three of them.

So, you know, continued excitement at the court. I can't wait until we get to four. I'm going to bust out of this vest when we do it. It's going to be so lit. Absolutely. I can't say much more about that without screaming. So I think we should, I think we should move on. I think we should, because we have some exciting cases to discuss. And some guests. And some very special guests. None of whom are named Paul. It's not just an

empty chair. Or Jonathan. No, no Jonathans are Pauls on this podcast. And we'd like to announce our first guest, Sarah Sherman-Stokes. Sarah's the director of the Immigrant Rights Clinic here at Boston University. And so she is going to help us with our discussion of United States versus Sinanang Smith. Thank you all so much. I'm so stoked to be here. And I see all my clinic students sitting in the second row. Pun intended. I'm the first one who has ever made that joke to her, guaranteed.

Yeah, my students, I think, are here for a grade. But it's not happening, guys. Yeah, no, very, very excited to be here to talk about this immigration First Amendment case. So the case is about the constitutionality of a federal statute that makes it a crime to induce or encourage a person to live in the United States or remain in the United States without legal authorization. And so Ms. Senator Ang Smith was prosecuted and convicted under this statute, as well as the mail fraud statute, for fraudulently encouraging individuals to submit applications to a labor program that DHS was running that allowed certain individuals to obtain lawful permanent resident status.

But she encouraged individuals to apply to this program, even though she knew they were not eligible under the terms of the program. So the government indicted her for violating the federal statute 1324A1A4, as well as the mail fraud statute. And she was convicted. She argued in the district court that the statute was unconstitutionally void from vagueness and denied her fair notice, went up to appeal on the Ninth Circuit. The Ninth Circuit requested supplemental briefing on whether the statute violated the First Amendment because it criminalized too much speech. And the Ninth Circuit ultimately found that the statute was overbroad and the government petitioned for cert. And that's where we are now. That's where we are now. And it's sort of curious. I mean, it's worth, I think, pausing for a moment to note, it's sort of bizarre that

we're even hearing this case. There's no circuit split on this. This is a statute that the government really hasn't shown it needs and is rarely invoked. I mean, part of their argument on the merits is, don't worry, this provision never comes up. And we'll never use it. We promise. Trust us.

Trust us to exercise our prosecutorial discretion. I hate to go back to bridgegate which i know has been covered in always happy to go back to the jersey shore but it brings up kelly right it brings up this bridgegate case because in that case fagan who came out today is going to be arguing this case next week eric fagan the new criminal deputy right deputy solicitor general um and and he's to be arguing too, and I suspect he'll be saying similar things, which is trust us, right? Trust us. Give these roving

prosecutors endless power to make decisions we promise we won't abuse. It's a no from me, dog. I was going to say, that's going to be a hard pass. Hard pass on that. Well, I'm so sure that the justices who were let's say unwilling to trust the government in Kelly when it came to the prosecution of state and local officials will be equally skeptical of the government's ability to exercise prosecutorial discretion in immigration and drug cases.

Right, Melissa? I mean, obviously. If there's any context in which they'd exercise discretion, I'm sure it would be this. Definitely in drugs. So can we maybe, one of the questions in this case, you know, we're kind of joking about how there's all this discretion. Why would there be so much discretion under the text of the statute? And why is it so kind of objectionable from a First Amendment standpoint? Right. So, I mean, I think, you know, on its face, it seems to violate the First Amendment pretty clearly. And it's interesting, the government does these sort of crazy gymnastics in its brief to try to argue, to rewrite the statute, actually, because I think they recognize how problematic it is.

But this statute does, it criminalizes encouraging unlawful immigration or someone to remain in the country without authorization, which would potentially criminalize, frankly, all the work that my incredible clinic students are doing here at BU Law, the work that immigration advocates and attorneys are doing to tell a client, you can stay. You might be eligible for relief. Let's pursue that relief. And the penalty for that is five years in prison. If the financial gain sentencing enhancement is added, it's potentially 10 years in prison. So we're talking about pretty severe penalties that could encompass a wide range of behavior. And that's the point that the city of San Francisco makes in its amicus briefs. And

San Francisco, along with a number of other localities, has a huge stake in this because many of the city's social services are available to all comers, regardless of immigration status. And so one of the things San Francisco says here is that it deters cities from providing basic services to all comers, and more importantly, in engaging in any kind of political speech that might be in favor of immigrant rights. which enjoys far greater First Amendment protection than other kinds of speech. So they're making a very calculated decision here, but also staking out some real ground for cities and localities. And so there's an interesting kind of federalism dimension that they're leaning on here, that these are services and things that states and localities do all of the time. Like this is supposed to be what the court loves. We love federalism. We love zones of authority for states and localities do all of the time. Like this is supposed to be what the court loves. We love federalism. We love zones of authority for states and local government. Well, this is that, and you need to lean all the way back. Yeah. Something tells me there might be a difference

when it involves non-citizens, but maybe. I mean. So the facts of this case, I feel like are bad for the defendant. You know, she encouraged these individuals to apply for a program that they were obviously not eligible for. On the other hand, that was something that the government could and did prosecute her for under the mail fraud statute. And as we're suggesting, the issue in this case is, as the Ninth Circuit framed it and as it comes up to the court, whether the statute is overbroad. That is, even if this particular defendant's conduct could be criminalized, whether the statute also applies to too many cases of constitutionally protected speech. And, you mentioned the example of your clinic providing assistance to some individuals to remain in the United States while they are seeking to adjust their status. But there are a bunch of other examples as well. You know, you mentioned the amicus brief, Melissa, of the city council that, you know, includes some provision of services to individuals who lack legal authorization to be

here. There's also, you know, charity workers, religious leaders, community organizers, either arguing, you know, that individuals should stay to test the validity of certain statutes, or because, like because they think they might ultimately obtain adjustment of status, or it's just like political dissidence. And the court has suggested that overbreath is a disfavored remedy. That is, they don't generally like to invalidate statutes on the ground that they apply to too many individuals whose speech is constitutionally protected. But here, the statute really does seem to sweep super broadly. And I thought that the respondent's brief for Ms. Sinanang Smith was extremely effective at

knocking down the government's arguments for why they needed this particular statute. So the respondent's brief is led by a team of lawyers at WilmerHale. I previously worked there. I feel the need to disclose that. But I think two of them on the brief are like two of the best lawyers that I know. And also, you know, two extremely good human beings, Mark Fleming and Alan Schoenfeld. But basically their argument is all of the government's theories could be prosecuted under other criminal statutes. And that perfectly exemplifies that this statute has to sweep more broadly than all of the bad cases that the government trots out because they could just prosecute them under other provisions. And so

what's this one for, if not for reaching some of these more questionable cases of constitutionally protected speech? And the government's point that they don't actually need to use this just sort of further bolsters the point that's being made in that brief. We don't actually have to do it. It also undercuts the point that the city makes. So one of the things the city mentions in its amicus brief, City of San Francisco and other localities, is that this section, in order for cities to get these block grants from the federal government, they actually have to certify that they are not violating the terms of this particular statute. So the idea that the government is not using it is actually false. I mean, it's sort of passive, but it is being used. And there's a really interesting, I think, dichotomy between textualism on the one hand

and purposivism on the other. And Leah's talked about this before and in her work, but generally it's the conservatives who are always talking about textualism and the liberals talking about purposivism. But here we kind of see a dichotomy with the government sort of saying like the purpose of the statute is not to be used at all. And then, you know, the response and Ms. Sinanang Smith is saying, but the text of it is so obviously broad and meant to capture all kinds of activity. And it's worth noting, because we're here in Massachusetts, that in fact the government has prosecuted defendants under this statute. Here in Massachusetts in district court, we had a case, Henderson, which had some really sort of interesting facts. A woman who works for CBP, who worked for Customs and Border Patrol, was employing an undocumented immigrant to clean her house and giving her really robust, hard-hitting legal advice like,

if you're undocumented, you should file paperwork. And do you have a U.S. baby here? Maybe you could get status. And that undocumented immigrant cooperated with CBP to surreptitiously record this employer. And then she was prosecuted under this statute. So to say that we don't need this, we don't use it, well, in fact, it has been used. That case, she was prosecuted under this statute right so you know to say that we don't need this we don't use it well in fact it has been used that case you know she was actually convicted although it was later overturned um but i think you know there could be some interesting bedfellows here because of the way this cuts the other thing that really is interesting to me in these overbreadth cases is that it feels to me like the arguments you usually see from the government and from the criminal defendant are switched so in in a normal case, the government will be seeking this, you know,

broad expanse of view of federal criminal law. But here you have the government saying, no, no, no, you should take a very narrow reading of it. And you have the criminal defendant saying, no, you should interpret it incredibly broadly. And also you should interpret it not to have a mens re requirement, which it's like down is up and, you know, there's summer in the winter. It's a little interesting to me. Absolutely. Yeah, it'll be really interesting to see, I think, what happens. And Mark Fleming, who's arguing, who you mentioned at Wilbur Hill, is fantastic, has had a lot of success in previous immigration-related cases in Judelang and Mathis and Reyes-Mata.

So I think it'll be a really interesting legal argument against Fagan, of course. Do you have any predictions? Gosh, I mean, I can't... What I'm most sort of curious about, what we were chatting about earlier, is whether this case comes down the same as Bridgegate for the same reasons, right? If you've got the government saying, trust us, is the court going to rule one way when it comes to non-citizens and the other way when it comes to the New Jersey government officials? I don't know. It's hard not to make the comparison when you've got Fagan arguing both sides or both cases. Yeah. I did want to highlight two of the

arguments that the government is making specifically because I think that these arguments kind of illustrate in some ways the weakness of the government's position. You mentioned that they were trying to rewrite the statute, and that's one of the arguments that I want to touch on. But the other argument that the government is making is, well, this statute can't possibly be constitutionally overbroad because we charge Ms. Sinanang-Smith with a sentencing enhancement. That is, we didn't just charge her with encouraging or inducing people to remain in the United States without legal authorization. We also charged her with a sensing enhancement that applied a higher sentence for individuals convicted of that crime if they were doing so for a profit. And that is just a completely bonkers view of overbreath.

Right, but you have to be convicted of the base, the predicate offense. There's still an underlying offense. Right. And so I went to a First Amendment colleague of mine because I'm thinking, okay, well, I'm an immigration scholar. I'm not a First Amendment scholar. Maybe I'm missing something. This doesn't seem to be a credible legal argument, and his analysis was, in short, this is bananas. The Gwen Stefani School of Jurisprudence. He then spelled it out, B-A-N-A-N-E-S. Yeah, but it would be like, you know, as a respondent kind of points out in the brief,

like, if there was a statute that just criminalized speech critical of the president, and then there was a sentencing enhancement for specifically issuing threats to the president, and you're like, oh, well, it's fine to criminalize criticism of the president because we could always charge it with a sentencing enhancement

of actually issuing a threat. Like, that's not how First amendment doctrine works. It's a totally nonsense argument, but they really dig in. Yeah. Like they really want to die on that hill. And I don't quite see how that's going to, how that's going to go well for them. Yeah. One thing I wanted to also note is that there's a kind of change in position. I think that the government made from the case when it was in the district court and the court of appeals and now. So in the court of appeals, I think during oral argument, the government expressly said this is not a solicitation statute. This is different from aiding and abetting.

And their position now is that although the text of the statute refers to inducing or encouraging, we should construe encouraging to mean soliciting or aiding and abetting. And I think I'm actually sympathetic in this situation to the SG in a way because I think. I just want to note that Melissa's face had no chill. There's a separate subsection that specifically criminalizes aiding and abetting. It's the very next subsection, in fact. It's the very next subsection that says aiding and abetting. You're saying this is aiding and abetting, aiding and abetting.

But the sympathy that I have is the slight switches in position. I think there's always a lot of criticism. Like, you've changed your mind. On the other hand, it's quite common for once a case gets up into the Supreme Court, you have different attorneys. You want to make slightly different arguments. And they also say that the defendant has changed her position and she's offering new arguments in the supreme court so i feel like there can be some yeah so that's true but like on this particular example i think it's really problematic for the government because the government's main thrust of its brief is trust us right like we promise we will interpret the statute in a very

limited constrained principled way and then it turned out they weren't even literally adopt a unified theory throughout this particular case. Right. Our trust in them is lost. Right. But I mean, it's just, it is honestly, I think we should pause for a moment. Like, it's literally the next subsection of the statute that is aiding and abetting. So the idea that Congress... And it's aiding and abetting any of the things that preceded. Correct.

Exactly. So to suggest that this is a solicitation or aiding and abetting statute and to ask the court to rewrite the statute. So why did the court take this? Because this is like, this is actually... Because the Nines are getting validated a federal statute in the SJ petition for cert. That's why. I mean, it feels...

And it's hard not to, you know, in this particular political moment, it's hard not to feel like this has particular political resonance given what it's about and the kinds of conduct that it could cover. Also, First Amendment, there's a special, you know, cert worthiness for first amendment cases there just is there's a lot of a lot of folks in the court who are really interested in first amendment

stuff there's a lot of law clerks who are really interested in first amendment stuff and i feel like it's a it's a kind of bonus for first repetition and if you would like to read the paragraph that explains why the respondent should win on that first amendment argument read the first paragraph of respondents brief sarah. Sarah, thank you so much for joining us. Thank you all so much about this. Yes, thank you, Sarah. So the next case, which Jamie will relay for all of you, is one that should be, I think, on the top of your radars. This is CELA Law versus the cfpb consumer financial protection bureau and a man named paul is arguing it so before i would just like just like to note the origins of like before elizabeth warren

killed michael bloomberg literally murdered him repeatedly by the way eliz and over and over again. Elizabeth Warren knows that even when the dragon seems down, you kill the dragon again. It's true. Drogon. She's like... So before she killed Michael Bloomberg 150, 11 million times,

she gave birth to the CFPB. That's where I was going with that. Elizabeth Warren gave birth to the CFPB. That's where I was going with that. Elizabeth Warren, mother of the CFPB. It's like the circle of life. Okay, all right. And I have to tell you, when I was a law student at Harvard, Elizabeth Warren was my contracts professor. And I distinctly remember one day we were having-

Did she walk up at the front of the class and announce, here's a provision that will release employees from NDAs if anyone ever wants to use this? they she did not have that opportunity but what she did do is she came into class one day and she you know was talking about i think we were talking about contracts and contracts of adhesion and toasters and things blowing up and she told us about this idea that she had for what she called at the time, I think it was the Consumer Financial Safety Commission. And how it was, and it was like this, and she had written a law review article about it and how, you know, it's, it's, you know, it'll probably never come to fruition, but it's kind of a cool idea. You know, keep dreaming, Liz. Fast forward, you know, a decade

or so. And we have this case that is questioning or challenging the constitutionality of the CFPB. When the CFPB was initially proposed, it was intended to be a multi-member commission. But it ended up being passed as an agency with a single director to be appointed by the president and removed only for, quote, inefficiency, neglect of duty, or malfeasance. It's basically a four-cause removal provision. And the question is whether that type of removal authority is constitutional. It's generally understood that the power to appoint also encompasses the power to remove. And that's because we have a three-branch system of government. There aren't four branches, which means that administrative agencies need to be accountable to the executive.

And the way that happens is through the power of removal. So in this case, you have CELA Law, which is a law firm that was being investigated by the CFPB and didn't want to turn over documents. So it just challenged the constitutionality. It's catching. It's what? It's catching. Yes. People not wanting to turn over documents. So it just challenged the constitutionality. It's catching. It's what? It's catching. Yes. People not wanting to turn over a document. There you go. So just challenge the constitutionality of the agency and you can avoid doing so for many, many years. In the Supreme Court, interestingly, the government actually conceded the unconstitutionality of this

for-cause removal provision. And so right now the government and CELA law are on the same side, essentially, with one tweak that we'll talk about. But they have two basic arguments. The first argument is that for-cause removal of agency heads is presumptively unconstitutional. And they say, sure, court, you have occasionally allowed this, but only in narrow circumstances, and this case is totally different. And so the primary case the parties talk about is this case called Humphrey's Executor, which upheld for-cause removal for members of the FTC, the Federal Trade Commission. And what the petitioner says is, well, this case is totally different from that because that was a multi-member commission. And multi-member commissions have to, you know, reach, and that protects people from arbitrary decision-making.

And so that's fine. But this is not that situation. The problem with that is the Supreme Court also upheld for-cause removal in a case called Morrison, which involved a single head of an administrative body. It was the Office of Special Counsel. So what the petitioner says about that is, well, yeah, but that office has a very narrow investigative authority. They don't look at the public generally. It's just about kind of federal personnel issues. And then there are other removal cases, but the petitioner basically says all of those are distinguishable.

The court has never upheld for-cause removal of a single director agency with these massive enforcement powers who is accountable to no one. And then the second argument is, if you don't believe us that Humphrey's executor case is distinguishable, you should overturn it. And the thing that's most known, and this is a 90-year-old case that is basically the bedrock of the modern administrative state. And the stare decisis section of the Sela Laws brief is less than two pages. And of the modern administrative state. And the stare decisis section of the sale of laws brief is less than two pages. And of the government's brief is one paragraph, which I feel like says something about the state of stare decisis. Sitting around wearing stare decisis is for sucker t-shirts writing briefs.

We need to make those. We do. Strict scrutiny stare decisis is for suckers. We need to do that. We do. Before the court starts making them for us. Yeah. So Leah or Melissa, do you want to talk a little bit about who is trying to argue for the CFPB?

I think his name is Paul. Most likely. I think it might be Paul. Exactly. It's a safe guess, this particular argument sitting. Yeah, so this was a case in which Justice Kagan selected Paul Clement to argue to defend the constitutionality of the CFPB structure. This might have actually been the move where Elena Kagan goes back to her office and strokes a hairless cat for a half an hour. It is kind of a genius move.

It is. And honestly, his brief, Paul Clement's brief, did not disappoint. It is excellent. It's a good brief. Yeah. I don't even know where to start it has everything in it has exit ramps it has responses to the stare decisis question it has a unifying theory of all of the all of the supreme court's cases like it's beautiful it's a platonic

ideal of a brief it has some let's say kind of baller moves in the brief. You know, first the... It is the Jennifer Lopez and Hustlers dancing to Fiona Apple brief. It is. It's like, I've been a bad, bad girl. So first, Paul comes out swinging in his fur coat and devotes a mere two paragraphs, basically, to the government's main theory in which it is using to distinguish the CFPB from Humphrey's executor. You know, the government's main theory in which it is using to distinguish the CFPB

from Humphrey's executor you know the government's main theory is this is a single director agency therefore that's completely different than Humphrey's executor and Paul disposes of that in two paragraphs signaling like what kind of utter bullshit that is because it's just not a distinction that makes any difference whatsoever when you are thinking about the extent of presidential control because who is easier to control a single member body or a multi-member body like it's not hard he gets a constance woo assist from my colleagues at nyu rachel barco um kurti dotla and ricky revez write this amicus brief where they're administrative law scholars. And basically their whole point is like, if you're going to arrest government, your whole, or government and CELA, your whole theory on this idea that multi-member boards are somehow easier to control,

well, there's huge diversity in multi-member boards. They can be appointed differently. They have different kind of removal requirements. They deliberate differently. So all of that is kind of bananas. So that wouldn't be it. And then they make this really important point. Don't go down the multi-member avenue because the real multi-member body that you definitely don't want to touch is the Federal Reserve, right? Nobody wants to touch the Fed. And they talk about all of these other cases where among the justices talk about the distinctiveness of the federal reserve and how they don't want to

endanger it how brett kavanaugh and his dissent in the other cfpb case um phh corp versus cfpb which was heard by the dc circuit in 2018 suggests that the federal reserve board might be thought of as an anomaly like right don't touch it well there are so there are so many distinctions you can identify between these different agencies and if the distinction as frankly irrelevant to the extent of presidential control as a single director versus multi-member structure can make an agency unconstitutional then you are opening up you're going down that road. Exactly. The avenue to identify all these other possible distinctions. And nobody wants to touch the Fed because FYI, that's a recession. What I really loved about Paul Clement's brief is it offered a very clear, cohesive theory of all

of the court's cases. It says we can divide all of the court's cases on removal into two categories. Number one, the court has always said it's unconstitutional if Congress tries to allocate to someone other than the president the power to remove. So if Congress says the president can remove with consent of the Senate, no good. If Congress says the SEC has power to remove certain individuals, no good. But aside from that, Congress can place what he calls modest restrictions on removability and allowing the president to remove someone for inefficiency, for neglect of duty or misfeasance is giving the president a lot of rope. So it's not that big of a deal. I would say the weakness in this argument that I see, it's very neat, it's tidy, it's pretty.

The weaknesses, I do think it kind of ignores the bajillion cases in which the court has really emphasized the importance of removal as a check on agency authority. And it kind of glosses over that. And it also doesn't have a very big limiting principle because it would suggest that Congress can just create any agency it wants. You mean like the administrative state? A little bit, a little bit. So the other thing I really liked about the Clement brief, Paul's brief, is the insistence on judicial restraint, which I think he is speaking directly to the chief justice, not this time, not trolling him, but actually speaking directly to him. And there are all of these off ramps that he offers the court. So one is this, I mean, I guess I would call it a standing issue. He argues that the actual heart of this dispute

is about the investigation of Selah and whether that investigation is proper. And that really is very attenuated to the question of whether the director of the CFPB is removable for cause or not. So he sort of suggests like the injury here seems very tenuous and that's a problem. On a prudential basis, he suggests that even if you could satisfy Article 3's standing and this was justiciable, there would be lots of reasons to avoid taking this case up on the merits because it's kind of artificial, right? I mean, like, again, this is a dispute about an investigation, not about the structure of this agency. And he suggests, like, don't worry, there will be a better case that squarely presents the question of the constitutionality of the structure., don't worry, there will be a better case that squarely presents the question

of the constitutionality of the structure. You don't have to manufacture it with this. Yeah. And in particular, we know the civil investigative demand that was directed towards is not affected by or traceable to the removal restrictions because it was continued by the acting director who was definitely removable at will. and it's now been confirmed by the current cfp director who was conceding that she is removable at will and so there's all of those events suggest actually the removal restrictions is not really relevant yeah she's a trump appointee and she's like i take my keys from the president what he said so what paul says is that you should wait until a case uh until there's a case in which the director

has actually been removed and is challenging it. And that's what kind of Humphrey's executor and all of these other cases involve. I have to say, I don't find that super compelling because I think if the argument for, for cause removal is that it is, it's a kind of imposition on our liberty and that regulated entities are, you know, there's agency capture issues and there's arbitrary decision making. So I do think to me, it does make some sense that the individuals who are actually being regulated or, you know, the act is being enforced against them should have the ability to challenge that structure. Whether you actually substantively agree with the position i think what he's doing is giving the four liberals on the court

enough grist to grind the mill and to like make the chief justice really you know either fish or cut bait are you an umpire or are you know are you up for judicial modesty or not and i do think that the the the fact that the acting director ratified this expressly that wasn't even addressed at all in the opening brief which i found a little surprising i will say um because i do think well so the in in the reply what the petitioner um represented by canada chamigan says is there's no actual doctrine that paul clement invokes which is true i mean it's not really standing it's not really mootness it's it's a kind of prudential this is not a good vehicle issue it is a strange kind of uh doctrine-less um avenue but it's like

he is driving an uber and he's like we can get off here we can get off here or we can decide this on the merits. And then there's sort of a narrow, and this is another great part of this brief, like you could decide this quite narrowly by simply removing the for-cause issue and making this person removable at will. Or you can take this incredibly sweeping stare decisis for suckers route. That's another exit ramp where we just obliterate the administrative state and Humphrey's executor. And then we drive off a cliff like Thelma and Louise. So on severability, that's the one

place that the government and the petitioner are not in agreement. So what the petitioner says is, if this is unconstitutional, you should either just decide this case in reverse and not decide what impact this has on the statute as a whole which seems unlikely or you should you should declare the entire consumer financial protection act unconstitutional as a whole every aspect of it every every you know prohibition everything and the government says this is not hard there's a severability clause there was purposely so yeah you can just get rid of for-cause removal and make the director removable at will and the problem is gone but the petitioner says that i mean this is sort of weird it's kind of like you know the dion warwick part of this brief

where the petitioner tries to read congress's mind like what congress really would have wanted in lieu of just getting rid of the for the removal for a cause and putting in this removal at will is to make this a multi-member body which you can't do because that would be too much for you court even though this whole stare decisis thing that would be enough um that's too much for you to do so instead just get rid of the whole statute which is incidentally exactly what the government is arguing in the Affordable Care Act case in trying to strike down the entire Affordable Care Act because Congress would not have wanted a mandateless act. Which, by the way, Congress enacted in the Tax Cuts and Jobs Act. I kind of think that the most likely outcome is that the

court says this is unconstitutional, but severability applies. Let's sever it. Yeah, I agree. So I thought it was interesting here that there are so many amicus briefs from members of Congress. Yes. Like, don't you have laws to pass?

Why are you in legal writing? I'm pretty sure they don't pass laws right now. They just confirm judicial appointees. Yes. Ooh. Sorry. confirm judicial appointees. Yes. Ooh. Sorry. Ooh, hot burn. OK.

I don't think they would take that as a burn. I think they would say, yes, exactly. Yes, that's exactly what we're doing. So there's actually a brief from Senator Sheldon Whitehouse of Rhode Island, Richard Blumenthal of Connecticut, and Mazie Hirono of Hawaii. And they have been actually big brief writers this term. They also filed a brief.

Writing some spicy takes. They do have some spicy takes. They also had spicy takes in the NYSERPA case, the gun rights case that we talked about earlier. But they filed a brief with Sussman Godfrey. Steve Sussman was the counsel of record on this one. And this is basically like a kind of law review about all the ways that they hate the unitary executive theory and how the unitary

executive theory is basically the root of everything that is wrong with government today and it is it is the foundation for the effort to completely undermine the administrative state and possibly take down democracy. Yes. I mean, I don't think I'm being that's a TLDR of the brief. They cite this piece from Jillian Metzger, her Harvard forward. She's a professor at Columbia Law School. I love this piece. The Harvard forward 1930s redux, the administrative state under siege. This is the 2017 Harvard Law Review forward. And she basically talks about the fear that the Roberts court, she says, has gained the reputation as a pro-business court, thereby reinforcing perceptions of it as anti-regulatory, and it has become increasingly polarized. That was in 2017. And I think they're saying, yeah, everything she said only like

150 times which i think comes back to justice kagan's appointment of paul clement yes which is so interesting to me because i think i don't know if i could get in justice kagan's head and i should never do that i would imagine you know maybe she still has faith that that that the court can come together and reach a result. And so she's going to kind of give them on a silver platter this conservative gray-haired man who will give them arguments. Name Paul. Yes, name Paul. Who will give them arguments that they can use and all this will do and they can reach a consensus decision and this will shore up the legitimacy and confidence in the court.

Yeah, I don't think that's going to happen, Elena. But keep stroking the hairless kid. I do think it was genius to appoint a conservative to defend the CFPB. I mean, it's totally a playing against type. Perhaps we should move on to our next segment. I am so excited. We have a little ray of sunshine coming up to the stage. Please welcome BU's resident genius, Danielle Citron. segment i am so excited i am so we have a little ray of sunshine coming up to the stage please

welcome bu's resident genius danielle citron so we cannot imagine doing this episode without also having a conversation with danielle and we wanted to discuss how two pieces of her tons of different kind of multi-faceted work touch on the Supreme Court and Supreme Court commentary. So again, it bears repeating that Danielle is not just a genius regularly, but she's an acknowledged genius from the MacArthur Foundation. She is a winner of this, one of this year's MacArthur Genius Grs for her work on cyber civil rights. And so I am especially interested in your work on deepfakes.

So first of all, can you tell us what is a deepfake? Okay, so a deepfake is a technology that allows us to manipulate or to totally fabricate from digital whole cloth video and audio showing people do i know you can't take me seriously should i take this okay uh doing and saying something that you never did or said um and the technology begins like so many things do online in the in the sort of recesses of the internet with porn so in 2017 there's a subreddit devoted to deepfake sex videos and it then the tools to create deepfakes

are really democratized so you go to youtube and there are countless tutorials about how to make deepfake videos. And like so many things, I sort of feel like the canaries in the coal mine of how we abuse technology is it's often women and marginalized people. And then they go mainstream and then hostile state actors use them. And then Michael Bloomberg just tweets it out.

And Michael Bloomberg, like, let's have a minute. Yeah. Okay. But what we've seen is... He came back from the dead. He did. He's have a minute. Yeah. Okay. But, you know, what we've seen is. He came back from the dead. He did. To create a deep fake. Exactly.

Of himself alive. And with deep regret from all of us. Like, dude, don't go into the deep fake business. It is not working for you. Right. So of the 15,000 deepfake videos online, 96% are deepfake sex videos and 99% are of women's faces inserted into porn without their consent. And it's true. So many folks, when we talk about deepfake, say, Danielle and my co-author, Bobby Chesney, you're sort of blowing things out of proportion. And I think, you attached, their home addresses,

their sites that their entire business model is online advertising for the encouragement of user generated content, user generated deep fake sex videos. So there's harm in the here and the now and there's harm in the here and the now in a way that involves state actors because we saw with Rana Ayyub, an extraordinary journalist in India whose work exposed the corruption of the Hindu nationalist government. And she's a Muslim woman. And she was targeted a year and a half ago with a deepfake sex video. So it showed her engaging in a sex act in which she never engaged in. And within 48 hours, it was wildfire. It was on half of the phones in India, spread via WhatsApp, Facebook, Twitter.

Her Twitter feed, her email inbox, her texts were all overwhelmed with death and rape threats. And it was all intended to silence her critiques of the Modi government. And it achieved its result for a good six months. Even the UN Council on Human Rights issued a statement saying we're afraid for her safety. So it wasn't like she was making it up, right? So I mean, again, we are totally sympathetic to this claim that you are being hyperbolic and calling things out. We have said before, we constantly feel like we are Cassandra destined to know the truth and not be believed. And let's have a moment. The best Cassandras I know.

God bless. Love you guys. As I listen every week or more to Strix Ritney, I think I've got my sisters. I'm good. One of the things that you and Bobby Chesney highlight in your California Law Review article. Just came out. Put that out here. Just came out.

Hot off the presses. Download it while it's hot. You note that this really has important consequences for democratic institutions, government, the economy. Imagine on the eve of Snapchat's IPO, there was a deep fake of the CEO doing something totally terrible or questionable. That would have been harmful for the initial public offering or imagine more particularly the eve of the 2020 election on like the famous october surprise what if the october surprise is a video of one of the candidates doing something that she never said right or grave Or gravely ill. Right. And so people, you know, undermine the process because they don't go to vote. Yeah. And so fundamental to all of this is just the decay

of our trust in the integrity of elections, as well as as much as Bobby and I really worry about people believing fakes. Yeah. We're also deeply worried that not only that we'll start to disbelieve the truth. This is the liar's dividend. Yeah. So not only then are we more inclined to believe the deep fake, because when we then start becoming skeptical of deep fakes, when we start being educated about the prospect of deep fakes, it also makes us more skeptical of things that might actually be true. So imagine, for example, you had a presidential candidate saying that he could grab women by their private parts because he was a star. Imagine if that happened.

And they just let him do it. And they let him do it because he's a star. You might be inclined to disbelieve that as a deep fake because you are recognizing that these deep fakes happen. So this is the liar's dividend. And wait, ready? And our guy, you know, he capitalized. It was hypothetical. This hypothetical guy capitalized on this possibility by about a year after the access hypothetical tape comes out, says, I never.

Oh, that was a totally doctored audio never happened and that interview with lester holt about in which i say that you know russia is why i fired comey that didn't happen that was a deep fake too that was a deep fake that's the liar's that's the liar's dividend like using our skepticism education about deepfakes to escape accountability for wrongdoing. So can I pivot? That sort of deepfakes, video, audio that can disrupt democracy, disrupt democratic institutions. How do deepfakes impact SCOTUS? Okay. So, you know, Jamie, we were slightly talking about this. So, um, you know, we have seen video and audio be taken as total truth by the Supreme court, right? In the Scott versus Harris case, all my, where my Sib pro kids, I see. Yeah. I just want to note for the audience. Um,

who's not the people listening at home. These are incredibly glowy happy boston university law students i love my they look tan they look rested well fed like you guys are doing something great here the cutest and the smartest definitely gotta say okay so so in scott versus harris right the supreme court is presented with a question on summary judgment if the court can basically look at a video of a man driving incredibly fast away from the police and say the video basically speaks for itself yep that is there's one way to look at the video and there were no signs that the video had been doctored but it is this powerful sense that when we see something we can of course believe what we see and hear and so that's the power of the videos that's i guess we could make up some good scotus i was you know have we thought of some good some

of our listeners have so for example you know the chief justice um uh all of his pictures in the impeachment trial one of our most wonderful listeners adam music photoshop some strict scrutiny swag onto the wasn't there a coffee cup right like a strict scrutiny coffee cup exactly he had a coffee cup he had a baseball cap oh yeah my dog stevie nicks was sitting right next to him um in her enforcing the voting right but he didn't have this well she was wearing a slightly different band okay so so what i love about this is you talk about, you know, the First Amendment implications of the discussion of deep fakes because parody and satire are a really important, critical First Amendment protected activity. And in situations like the, you know, Chief Justice, it is obvious what's happening.

Nobody thinks he's sitting there with a trucker hat on. He really had that. But some of them, it's always uh as easy to see and and one thing i loved about the scott versus harris case is there's this footnote that says something like there's no sign that this was doctored and i'm just imagining you've got you know an octogenarian who still gets excited about a fax machine i don't know who you're talking about thinking that he'd be able to kind of like discern facially whether a video is doctored or not and um it's like obscenity you know it when you see it totally and and what's even scarier i love freaking everyone out sorry i feel like every time i give a talk we walk away depressed

and and we'll say something to make everyone feel better before we leave but um the no we won't i don't have any ways for that to be religiously all the time we're gonna walk out depressed but feeling like we learned from the smartest minds okay so um right now the technology is such that technologists explain that for at least for audio deep peaks they can't as a technical, tell the difference between what's real and what's fake. The sophistication of generative adversarial network algorithms are so sophisticated that, and they suspect that within at least like six to nine months, that the video will be so refined that technologists like Hani Fareed, who I do a lot of work with at Berkeley,

explains that the arms race we are as the technologists building these systems, we're going to lose it. That is, we're going to be behind, if you think of black hats and white hats and gray hats, that the manufacturers of deep fakes, they're going to win the game in the deception. So it doesn't mean that journalists can't do on the ground work and figure out, were you there? Did you say what you said? That's what journalism, beautiful, wonderful journalism does.

But it's in the moment, especially in social media environments, when a video goes viral and you can't detect just technically speaking if something is real or fake and it goes viral as you said so well it's going to tip the election it'll you know slam the IPO and there there are some things you can't take back there have been a lot of studies done and I've written on this I know you've written on this about the way that professional women across you know all different kinds of professions are treated on social media. And I just wanted to highlight one study that was done by the Center for Strategic and International Studies, which found that 42% of women parliamentarians had had extremely humiliating or sexually charged images of themselves spread through social media.

These deep fakes, 42%. I mean, that's shocking. And in a time where we need to encourage women to run for office, to, to, you know, to put themselves forward, to become judges, that's horrifying. And yeah, think about Katie Hill, right? Katie Hill, the photos that were taken in confidence and in a consensual relationship with her spouse and girlfriend, she basically is chased out of Congress. And it does send an incredibly powerful message to women. On that note, we have been so delighted to be here at Boston University.

Thank you, Dean Onwachi Willig. Yeah. Woo-hoo! So can I brag a little bit about your dean? You guys have the best dean. Yes. Like, again, full stop. Angela Onwachi Willig has been, like,

my sister-in-law since 2006. I hired her at Berkeley, raising the number of black women by 100%. That's cool. And we are so excited to see all the great things that you're doing here at BU. Thank you for having us here. Thank you for lending us your fantastic colleagues, Sarah and Danielle, for this conversation. We have been so delighted to be here. You have an amazing WBUR team here who have done everything to make this whole taping so seamless. We are so spoiled right now. We're so spoiled. Like you guys were the just best hosts. Thank you so much for

having us. This was an absolute delight and it was just wonderful can i bust in just for one second yes to brag about leah for a minute uh so leah litman um sort of rock star constitutional law thinker i met and she edited two of my pieces um when she was editor-in-chief of the michigan law review and I said to, I got to meet Leah 10, 11, no, it was like 11 or 12 years ago I came to campus. And meeting her, having had the incredible joy of having her insights and, you know, the best comments I've gotten,

forget colleagues, just from anyone. I said to Leah, we took a walk, and I was like, you need to be an academic now you need to teach all of us immediately and it has been such a joy not only to be your friend but to watch you

just take off like a rocket ship and teach all of us and I always feel so grateful knowing you as I have for 12 years and I'm so proud. So can I pile on? Yeah, please. Let's pile on.

Leah, I love you. You rock. For those of you who are listening at home, Leah's face not only has no chill, it's red. Yeah, you have no type of chill. No chill. No chill. Totally red. I think I just learned this year.

Leah's going to make Melody delete this part. No. No, no. We're keeping it in. No, no. I think I just learned this year. Leah's going to make Melody delete this part. No, we're keeping it. No, no. We're keeping it. No, no. I think I just learned this year that Leah is untenured. How is that a thing? How is that a thing?

How is that a thing? I'm giving it to her right now. I'm calling Michigan. We got this. You got strict scrutiny tenure. Oh, yes! This is why I love my Dean. Okay.

Yes. For those of you who are listening at home, Dean on a watch. He will just made a unilateral appointment. Don't worry. Removable only for cause. Inefficiency. And you know,

she's not going to be in Malfasance none of that she's gonna be here forever not a chance so leah started strict scrutiny like she brought all of us together she is literally the wind beneath our wings and keeps us going and does all the twittering i don't wear the ninja strict scrutiny bandana for anyone but you. Like I will literally do it all. Okay. You are all the best. And like the reason why there are more women who want to be law professors and lawyers, the reason why there are women like me who are willing to be extremely loud lawyers and law professors is because we have models in you and because like you all gave me encouragement and like I remember Melissa I think I got to know you because I was

just tweeting at you and emailing you how awesome you were when I like saw you testifying before congress and I was like I want to be her friend she's so so cool. But just having this support group of women who are fabulous and not afraid to be themselves has been the best thing that could happen for anyone professionally or personally. And while things can seem really dark and bleak and hopeless having just sometimes maybe um uh having this group of women who are willing to support one another and just keep propping each other up is i i just hope everyone can find that on that note thank you bu we have lots of people to thank not just you for your tremendous hospitality eddie cooper who does our haunting intro music. Thanks to Catherine Fink, who is substitute producing this episode for us while Melody

Rowell is away. And of course, everyone who helps us get this into your ear holes. You can support Strict Scrutiny by going to our website, www.strictscrutinypodcast.com, where you can find all kinds of strict scrutiny merchandise, including the ninja bandana, as discussed tonight, sweatshirts, checker caps, tricolor tees, all kinds of cool stuff. Some of it

worn in deep fake photos of the Chief Justice. And you can also support the pod by subscribing through our Glow campaign. So that is glow.fm backslash strictscrutiny. So thank you all for your support. Please keep your reader reviews coming and let us know what you'd like to hear from us and tweet at us.

You can follow us at strictscrutiny underscore on Twitter. Thank you. Thank you. we do have some time for audience questions. I think Alex from WBUR and someone else might have a microphone. And because we can't necessarily see the audience. No, we can. Okay. A little bit.

Well, Melissa, then you can call on people or Sarah can call on people if anyone has questions. I'm going to be like Paul. Paul. Paul. Paul. Hi. Thank you so much for coming to Boston. I really appreciate it. I'm so very excited to be talking to you,

especially Leah, who I followed on Twitter for a few years now, and Melody Rowell as well. I follow her on Twitter. The rest of us are feeling a little left out. Well, I follow you on Twitter more recently, but them for a few years now. Okay, you're Johnny Come Lately. It's cool. Anyway, but to that end, I was wondering,

do you think that the theory of the unitary executive is necessary to enforce the Voting Rights Act? Undoubtedly. Yes, only because everything is necessary to enforce the Voting Rights Act if adding a citizenship question to the census is necessary to enforce the Voting Rights Act, as, let's say, at least four Supreme Court justices said it was. Is pardoning Roger Stone necessary

to enforce the Voting Rights Act? You know it. You know it. I mean, Roger Stone necessary to enforce the Voting Rights Act? You know it. You know it. I mean, Roger Stone is a civil rights warrior. How can you imagine enforcing the Voting Rights Act if he is in prison? Come on. Roger Stone is a victim of lynching. That's what he said.

I just want to be clear that Melissa said that. Yes. I'm just saying he said that on TV. It's like he said this was a lynching right you're right i know i'm right i carry receipts i'm a black woman with receipts yeah um i love your shirt johnny come lately i love it it's fantastic he's wearing a shirt that says has all the female supreme court justices they're only four it's just a shirt it's not like a gown we're gonna make a nice supreme court shirt with all of the men named paul who have argued at the court like natalie

portman did when she went to the oscars with all the female directors embroidered on the coat who weren't nominated jonathan jonathan it's gonna be We're going to put that on the merchandise page. So I think we, it looks like we're out of time. Sorry. We were just, again, so excited to talk to your fabulous faculty that we went a little bit long, but we will stay here to mill. We have some strict scrutiny stickers, as well as some women also know law stickers that we would love to distribute. So thank you again so much for being one of us. Thanks so much, Lauren. I feel like I should be. Okay.