Strict Scrutiny - Open Season on Precedents

Episode Date: October 30, 2022

On Halloween, the Supreme Court will hear pair of cases challenging affirmative action in university admissions. Spooky! Janai Nelson, President and Director-Counsel of the NAACP Legal Defense Fund, joins Melissa, Kate, and Leah to preview the cases.Listen to an episode on race conscious remedies from our spin-off show, Irrational Basis Review Follow us on Instagram, Twitter, Threads, and Bluesky

Crooked is bringing our patented, no-bullshit conversations to the airwaves for the very first time with Crooked Radio, every weekend in the lead-up to the midterm elections on SiriusXM Progress and on the SiriusXM app. It's a new way to listen to the same Crooked content you love. So join our lineup of podcast hosts, candidates, experts, and more, including strict scrutiny, as we break down all the issues that matter this November, dive into the conversations shaping our current political climate, and give the only 100% correct opinions in politics. You won't want to miss this. Subscribe now and get up to four months free of SiriusXM. See offer details at SiriusXM.com forward slash crooked. Surprise! It's a Sunday episode of Strict Scrutiny. Think of it

like our version of Taylor Swift's chaotic surprise, that is the extra 3am tracks she released to her most recent album, Midnights. More seriously, we wanted to give you this episode early so you could listen to it in advance of the super big and important affirmative action cases that the court is hearing first thing on Monday, on Halloween. And you could follow along with the arguments in those cases if you're so inclined. We hope you enjoy, and we'll be back to our regularly scheduled Monday programming next week and going forward. All I want to say is that if you're thinking, like, maybe I shouldn't vote in this midterm

election because everything looks terrible and gas prices are really high and inflation and everything, I just want to note, they literally took away your rights in June. And this is kind of like a proving ground. Like, if you're OK with it and you sit out this election, you're basically saying, you know what? Take all my rights. Take them all right now. Like, this election is a referendum,

not just of Joe Biden, but this court. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Kate Shaw. It's me. Hi. I'm the problem. It's me, Leah Littman. Why are you like this? We all need to find our joy. I didn't put any Midnight references into the script. I think it's time to teach some lessons, Kate.

That's another line. I'm here to learn. Okay. I'm Melissa Murray. um okay i'm melissa murray today we're going to preview the cases the court's going to hear in the first week of what the court calls the november sitting but which we know actually starts on the last day of october so happy halloween america guess what justice alito has some treats in store for you and it may or may not be an apple with a razor blade inside. What, too soon? Like too early?

Nope. Nope. Nope. Nope. First up, we're going to do some case previews and then we're going to walk through some other developments in the lower courts and on the shadow docket. So Leah, why don't you take it away with the case that is the most hotly anticipated of the November slash Halloween spooky, spooky sitting. Okay, so we are going to start with the biggest cases of the sitting, really two of the biggest cases of the term and many of the last terms as well. These are students

for fair admissions versus Harvard and students for fair admissions versus UNC, two cases involving the permissibility of using race in higher education admissions. And to preview these cases, we are delighted to be joined by Janae Nelson, who in March of this year became the eighth president and director counsel of the NAACP Legal Defense Fund. That is truly, let me just pause and say, one of the coolest titles in the world of law. But more substantively and more importantly, it is one of the most important positions in the world of law. If you're someone who cares about justice and equity and multiracial democracy, longtime listeners to the podcast will know that we've been privileged to

host Janae's incredible predecessor at the helm of LDF, Sherilyn Ifill, as a guest on the podcast. And Janae, we are totally thrilled to welcome you to the pod as the only person who could possibly have filled Sherilyn's shoes. So welcome to the show. Thanks so much for joining us. Thank you so much for having me. So we've already laid a bit of foundation for these cases because I know Leah and Kate, you talked about these cases with Michelle Adams at your Ann Arbor live show. So this is going to be a pretty brief introduction because you can always go back and hear that live show, or maybe you can't because the audio was terrible. But, well, live shows are live for a reason.

Here's the gist of it. Basically, the plaintiffs in these cases are arguing that the use of race in admissions is unlawful. And the specific legal claims are technically different in the two cases. The argument in the University of North Carolina case is that the use of race violates the Constitution and specifically the Equal Protection Clause of the 14th Amendment. That is because the University of North Carolina is a public institution. Civil Rights Act of 1964, which prohibits all institutions in receipt of federal monies from engaging in quote-unquote racial discrimination. Of course, Title VI is applicable because Harvard is a private institution. There's also an argument in the Harvard case that's not relevant in the UNC case, which is that Harvard's admissions practices discriminate against Asian American applicants. And that actually is quite novel, because as we'll discuss in earlier affirmative action cases, affirmative action is presented as

a kind of reverse race discrimination that really sticks it to white people. Now it's kind of being reframed as something that proceeds at a kind of intra-minority discrimination that sort of divides the minority community into different camps. So a very different kind of posture and one that I think is really meaningful and relevant. So in the Harvard case, the district court held a 15-day bench trial with 30 witnesses. After the trial, the court found Harvard admissions process survived strict scrutiny because the university used race in a way that was narrowly tailored to achieve the academic benefits that flow from diversity. The court also found no evidence of racial animus or intentional discrimination, and the Court of Appeals

affirmed that decision. The UNC case similarly involved a lengthy bench trial and a district court conclusion that the admissions policy was constitutional, but the Supreme Court took the UNC case before the Court of Appeals weighed in. So the two cases were originally consolidated for review, but now they're actually being argued separately, likely so that Katonji Brown-Jackson, the newest justice, who has decided to recuse herself in the Harvard case because she had previously served on Harvard's Board of Overseers. Terrible name. I think it's just an administrative thing, but they really – I mean, I think we should really be canceling the whole term overseer as a general matter.

But because she had previously served on that body, she decided to recuse herself from the Harvard case. But that means she can still participate in the UNC case. Slow pause here and just think about what would it mean to have a justice recuse herself from a case because the optics of actually participating in it, having previously served on the board of overseers, look really bad. Like, weird. I can't imagine another case where the optics of a justice's participation, Melissa, might cause some public concern about propriety or bias. I mean, she's obviously just being overcautious. Obviously. Hysterical ladies once again. Anyway, it's just to say that we're really glad that even though she had to recuse herself in the Harvard case, Justice Jackson is available to participate in the UNC case because she was absolutely phenomenal in Merrill v. Milligan, which is the voting rights case that the court heard in October, and she was on fire there. So I am so, so, so glad that she's going to be participating in this case. And I assume that during the Harvard argument, she's literally going to be behind the curtain, like silently screaming, maybe even taking a couple of shots

every time her conservative colleagues say colorblind. But hopefully she won't be too blotto that she can't participate in the UNC case. So I'm glad that she's preserved the opportunity for her voice to be heard in this. I think in Merrill v. Milligan, she presaged some of the arguments she's going to be bringing to the affirmative action context. So both cases are going to be argued on October 31st. Spooky! Both have asked the court to overrule Grutter v. Bollinger, which in 2003 narrowly upheld the University of Michigan Law School's use of race in admissions. And the history of race-conscious government policies and admissions in particular has of remedying the historic exclusion of minorities from educational institutions and employment opportunities, these policies were quickly challenged by those who argued that they were basically reverse discrimination against whites. versus Bakke case, the court took up a challenge to UC Davis's medical school admissions protocol, which set aside a number of seats for underrepresented minorities on the view that those students would graduate, they would serve underrepresented communities that were in

need of physicians. And Alan Bakke, who was a white plaintiff, sued, arguing that this program basically precluded his admission in violation of his constitutional rights. What emerged from Bakke on the court were six opinions and none of them in full had the support of a full majority of the court. So in one plurality opinion, Justice Lewis Powell delivered the judgment of the court. And then four justices, Justices Berger, Stewart, Rehnquist, and Stevens joined him to strike down UC Davis's minority admissions program. The other four justices, Justices Brennan, White, Marshall, and Blackmun, dissented from that portion of the decision, but later joined with Powell to

find affirmative action permissible under some circumstances, though subject to an intermediate scrutiny standard of analysis. They also joined with Powell to reverse that portion of the judgment of the California Supreme Court that forbade the university to consider race in the admissions process. Justice Powell's decision in Bakke suggested that diversity could be a compelling state interest to justify the use of race. But because the decisions were so fractured, it was hard to tell whether that view or something like it had the backing of a full majority. And that was the issue that was before the court almost 30 years later in Grutter. So in Grutter, the court ruled that universities could use race in admissions decisions. Grutter said that strict scrutiny applied to the use of race in admissions, but

that in the case, the University of Michigan Law School's admissions policy survived strict scrutiny and therefore was constitutional under the Equal Protection Clause of the 14th Amendment. It was constitutional because achieving classroom diversity is a sufficient compelling government interest that justifies the use of race, and the students were getting holistic and individualized assessment. In a companion case, Gratz v. Bollinger, the court struck down the University of Michigan undergraduate's approach to undergraduate admissions, which involved assigning points to individuals who were members of underrepresented minorities. And the difference in the volume for

undergraduate admissions versus a professional school admissions likely made a constitutional holistic review process more challenging for undergraduate admissions. But in Grutter, the majority suggested that there might be a sunset period for race-conscious remedies. Justice O'Connor's majority said they expect or maybe hoped that race wouldn't be needed in 25 years, which would mean in 2028, I guess maybe because we would have solved racism and compounded structural disadvantages by then. She did recant that, Leah. Her biographer, Evan Thomas, said she recanted that. I was going to note that, but I would also note that I guess great news, America,

we're about to hear from this court that racism has been solved five years early. So everybody pat yourselves on the back. Check. Cross that off. Excellent. Good work, folks. Pour yourself a gin and tonic. All right, so we're almost done. So one more case just to flag. In 2016, the Supreme Court, in an opinion authored by Justice Kennedy, reaffirmed Grutter in Fisher v. Texas II. So we have a series of cases which make clear that there is an important stare decisis question in this case, as well as the broader question about whether the Constitution should be understood to prohibit all government consideration of race, regardless of the purpose of considering race or the costs of not doing so. And we should say we did a short episode of our spinoff podcast, Irrational Basis

Review, about these cases. The episode is called Race Conscious Remedies. Check it out if you want a little bit more background on this. All right, Janae, I've got so many questions for you because obviously this court loves affirmative action. They just want to bless affirmative action up and down the place. They want to just uphold precedents. And I want you to tell me, how important are these cases in the long run? And what's at stake for ordinary Americans in these cases? Yeah, these cases are so important. First, they are a real test of the Supreme Court's fidelity to its own precedent. You mentioned that the court loves affirmative action, and we can judge that by the number of times it's taken up this issue that it first decided, as you all pointed out, in 1978. See, I was being snarky, but I might actually have been correct. Well, you know, it's the kind of thing where it's like that abusive kind of love where they love the subject, but every time they get their arms around it, it comes out lesser for it. So affirmative action has gone before the court several times, but every time it seems to come back just a little bit narrower, just a little bit more difficult to navigate. And unfortunately, it also has what I

think is something of a chilling effect in that some universities are concerned about how they can continue to use race-conscious admissions, despite the fact that the court said in Fisher that universities should be given deference in terms of how they compose their student classes to enable diversity, to enhance the learning experience. But what's really at stake here is not only a test of the court's willingness to adhere to its own precedent, to follow stare decisis, but more broadly, whether it has any self-awareness about the crisis in public confidence that engulfs this very court. I mean, I can't even say it started with Dobbs, but certainly Dobbs was the most bold

manifestation of that crisis in public confidence. And given where our democracy is, given the numerous ways in which our democratic structures are being tested and threatened, the court needs to maintain its integrity as a reliable, objective actor, even though I think people can quibble with that assessment of the court. But it will only get worse if they undo affirmative action. And then in terms of just a practical consequence, affirmative action has helped to fuel the pipeline of diverse leadership in this country. We are still far, far from what we should be in terms of representation at the highest levels of government or the highest levels of any industry or segment of society, but affirmative action has helped to get us as far as we have gotten to date. And to reverse that pipeline would be absolutely devastating, particularly at a time when the

demographics of this country are shifting in such profound ways. So, Janai, your organization filed an amicus brief on behalf of 25 Harvard student organizations and alumni groups, and it made basically the array of arguments that you just kind of sketched out, you know, these practical arguments about the enduring need for race consciousness in admissions, the likely and devastating effects that a decision overruling Grutter and prohibiting these kinds of policies would have on the creation of pipelines on meaningful broad representation, sort of the highest echelons and kind of throughout our institutions. But I actually also thought it was so interesting the way the brief really explicitly made the arguments that

you just started with about the court and its own legitimacy and the view of the public when it comes to the court and kind of the crisis the court finds itself in. Those arguments appear in the brief. And I'm interested in hearing about the decision to center those arguments really explicitly in the brief directed to the court. Do you want the justices to contemplate what overturning Grutter and disallowing, you know, we can talk about what an opinion might look like if it overrules Grutter, but disallowing some or all forms of affirmative action, what that would do to the court as an institution? Yes, we thought it was important to center that part of the argument. There are many other reasons to uphold Fisher, to uphold Grutter. But what was important to us was to have the court understand what message would be sent,

what would be the effective outcome of turning its back on affirmative action. Because what that does is cements a perception of inequality in terms of the qualifications of Black and Latino and certain Asian students and Indigenous students who benefit from affirmative action. And what we've made clear from our time in the trial court when we intervened on behalf of the 25 student groups and organizations that we represent, we made very clear and the evidence bore out without any rebuke that these students, by the time they get to the point where race is considered in the admissions process, they have cleared every possible

hurdle when it comes to merit. And all of these students under consideration are perfectly capable and admissible and competitive and worthy of being part of this institution. What the school is doing at that point is trying to determine how to craft an incoming class that has a diversity of viewpoints and backgrounds and stories where you can have the sort of organic learning and exchange that really is the hallmark of American higher education. And so what we wanted to do was make sure that the court understood that by saying that we should somehow valorize test scores and grades and extracurricular activities in a way that erases someone's racial or ethnic background

and makes that less relevant than some other important contextual factors is essentially putting the courts in promoter of inferiority on those students. And it is reifying the racial hierarchy that defines our country. That is a dignitary harm. That is a harm that we thought this court had distanced itself from in deciding Brown and overturning Plessy. And we felt it was critically important for the court to understand not just the legal issues that are clear, that make it obvious that this affirmative action race conscious admissions process should be upheld, but that the court has a role in its own integrity and what message it sends throughout society about racial equality through this decision. So, Janai, can I ask a question about Justice Thomas, who always takes

sort of a contrarian view of race in these cases and certainly did in 2003 in Grutter. In his dissent in Grutter, he offered this idea that this whole idea of diversity and cobbling together this classroom experience of many different viewpoints sort of commodified Black and Brown students so that they could furnish a better educational experience for whites. And then he sort of suggested that the schools that engage in these race-conscious admissions policies are only grudgingly tolerating these students and not doing anything to really make their experience at these elite institutions especially robust and interesting and engaging and worthwhile for them. And so it's a different slant on race where he's kind of, you know, sort of turning it on its

ear and arguing that the real racial injustice here is not limiting affirmative action, but actually continuing it and using these black and brown students as sort of pawns for this larger diversity rationale that really accrues to the benefits of white. How do we engage that? Is it easier to engage that narrative now that there are two black justices on the court? Or has he sort of intervened and kind of turned things on its head in a way that it's hard to answer that actually this isn't what this the impact of affirmative action over the 44 years that it's been not just on white students, but on all students, that a diverse educational setting is better for everyone involved. And we've seen that borne out over the 40 plus years since. And most poignantly, I think if you look at the array of amicus briefs in support of race conscious admissions from industry leaders across the spectrum, from institutions of higher learning to STEM companies to some of the top corporations

in this country, we see that the diverse pipeline of leadership that comes out of this process of considering race and having not perfectly racially balanced classrooms, let's be clear, but more racial balance than we saw before affirmative action. We see the value of diversity in the workplace that is a direct product of what we see in our classrooms of higher education. We were so pleased to help to put together the coalition of companies that combined represent over 5.5 million employees worldwide and more than $3.2 trillion of annual revenue, saying that diversity matters and affirmative action is a necessity to the success of those businesses, to their innovation, to their creativity, to their economic success. And the people who benefit from affirmative action, be they Black, white, Asian, Latino,

or otherwise, are the products of one of the most celebrated higher education systems in the world. So I have no problem pushing back on that narrative that we are somehow being exploited by given the opportunity to get a higher education at some of the best universities in this country. That's exploitation I think we would all gladly avail ourselves of. And we see the benefits not only for those racial groups and ethnic groups, but also for our country at large. And some of the justices who are going to be weighing in here. Well, let's say that. but also for our country at large. And some of the justices who are going to be weighing in here.

Well, let's say that. So briefs making some version of this argument were among the briefs that the court found particularly powerful and persuasive back in Grutter, with the justices highlighting, among other things, a brief by military leaders that highlighted the benefits of diversity to cultivating military leaders who would be in a position to actually lead the country. Maybe we can shift now to talking about some things that aren't in the briefs, or at least aren't in all of them. And that's about the history. So Melissa, you alluded to how Justice Jackson's participation in Merrill versus Milligan, you know, pointedly focused on the history of the 14th Amendment and how it was adopted with race in

mind in order to facilitate race-conscious remedies. I am going to take a point of privilege and cite a Taylor Swift lyric here about how, I find it dizzying, they're bringing up my history, but you weren't even listening. And maybe that was about Justice Jackson and Meryl. I'm just going to float that possibility. I think it's entirely possible, Leah. Thank you. Thank you for validating this. If Taylor would like to disagree with this, she's welcome to come on the show and talk about it with me. I completely believe that vigilante shit is about SB8, 100%. Well, I have a different theory that, Janae, I'll spare you, but maybe we can return to

later on. Anyways, so the history. The know, the Students for Fair admissions brief authored by some geniuses, trademark Justice Kagan, is pretty light on the history. And so I guess, Janae, I would love to hear you talk about like, what does the history of the 14th Amendment, the Equal Protection Clause, show or say about the permissibility of some race-conscious measures? Yeah. So essentially, there is an effort like what we've seen in so many spaces these days to co-opt the 14th Amendment, to co-opt the Equal Protection Clause, to co-opt Brown versus Board of Education, and ascribe an entirely different meaning that serves the interests of a conservative minority, a very vociferous one, but conservative nonetheless, an extreme conservative minority of voices. And essentially, the theory is that Brown versus Board of Education,

which was based on the 14th Amendment's Equal Protection Clause, means that we cannot consider race at all because doing so would be, as I think you said in your intro, reverse discrimination. It's this concept of colorblindness. And I think that what was so skillful in the Merrill versus Milligan argument, which I'm so proud to say that one of our lawyers, Duell Ross, who was just on your program, argued what was so incredibly impressive about what Justice Brown Jackson did is that she was able to point to the very text and the original intent behind the Reconstruction Amendments, of which the 14th is one, and make it as plain as day, because so many of us just don't know

history or don't remember it, that they were intended to reverse the effects of the enslavement of Black people in this country and the legal subjugation under which they lived and operated by making very clear that race could not be a basis for discrimination. Not that it could not be a basis. Wait, wait. Are you saying the 14th Amendment was race conscious? I am saying that the 14th Amendment was not only race conscious, it was race positive. It was race visionary.

It was race all those things. Does Justice Thomas know? Does he know? If he doesn't know now, he knows, right? So I think it's just, you know, let me quote Biggie since you're quoting Taylor. Dear reader, if it feels like a trap, you're already in one. It really doesn't require a whole lot of digging to figure this part out. This is a willful blindness on the part of some of the justices on the court and obviously those who want to see affirmative action overruled. But it's very clear that the 14th Amendment was intended to be a remedial provision of the Constitution and also to give Congress the

wherewithal to enact legislation that would fulfill the goal of ending segregation and ending, most importantly, the effects and lasting and durable impacts of entrenched, legalized racial apartheid. So when Justice Brown Jackson brought up that history in connection with the Voting Rights Act, it was really helpful to see how that backed some of the justices up on trying to embrace one of admissions, attempting to co-opt and completely mischaracterize the Constitution and the key decisions that are part of the pantheon of legal victories, part of the legal defense funds that have really helped to reshape our democracy and set us on the path of being a recognizable and cognizable democracy. And just to flag there, there's a wonderful brief that's a law and history brief that really walks

through some of the history that, Janay, you were just talking about. And not just the drafting and framing of the 14th Amendment, but the kind of series of pieces of federal legislation enacted, you know, right before, right after the passage of the 14th Amendment, the Civil Rights Acts of 1866 and 1870, the Freedmen's Bureau Act, like the language of these statutes and the debate around their passage all make crystal clear that Congress understood its 14th Amendment powers to include the ability to use race-conscious measures consistent with the 14th Amendment. Indeed, that there was like an obligation to do so in order to actually implement substantive equality or at least move us in that direction. And I think the history is just crystal clear.

And it is striking how little of it these plaintiffs include in their briefs, I think, for good reason, because it's just fatal. Because they can't. They can't possibly recount that history and engage it in a way that isn't completely laughable and try to get the court to come out with a different outcome. So the best thing to do from their vantage point is to ignore it altogether, which is why we have to engage it in our amicus brief so thoroughly. And just as an example of, I'm so glad you brought up the cooptation of

the Equal Protection Clause and Brown v. Board of Education. There are so many examples that we could point to about citing Brown for particular propositions. But these cases are about the legacy of Brown versus Board of Education and the meaning of Brown versus Board of Education, which ended segregation in public schools. And just one very recent example of the inversion of equal protection and the law of discrimination, I can't resist flagging a recent piece authored by Judge James Ho on the Fifth Circuit entitled, Agreeing to Disagree, Restoring America by Resisting Cancel Culture, in which he likened none other than Ilya Shapiro's tweets questioning the qualifications of Joe Biden's not yet announced nominee to the Supreme

Court, tweets suggesting that any Black woman nominated would be a lesser nominee. He likened those tweets to, you guessed it, Martin Luther King's I Have a Dream speech and Brown versus Board of Education. Like, that is the inversion. That is the cooptation. And just a very clear example of it. Yeah, it's like a house of mirrors. You don't even recognize the words that they're speaking. And, you know, what's most disturbing, though, is the extent to which these arguments get any audience before the Supreme Court, which takes us back to the very beginning of why this court is even entertaining yet another challenge to affirmative action so quickly after it decided it in 2016 and after, you know, over four decades of precedent upholding

race-conscious admissions. Right. But you shouldn't get inured to the fact that the court doesn't typically take up these kinds of questions when there's no dispute in the lower courts, when the, you know, the rulings below are totally consistent with what the Supreme Court has said, the sort of guiding principles in these cases are. It's clearly a sign that the court is just gunning to change the law again. And yeah, I mean, just to maybe one more beat on sort of the co-optation of Brown, you know, the opening of the plaintiff's brief, it is just, you know, I was just really glad that we were not be able to have you on the show so we could talk about this, but the like, the kind of claiming the mantle of Brown, right? And there's this kind of tricky thing in the second paragraph of the brief where they cite Brown, but it's actually parents involved. And that case is gloss on Brown and

actually on the Brown oral argument, not on the opinion itself. But it's galling just, I think, as a member of the public to read Brown deployed in that way. And as a person who literally sits in Thurgood Marshall's seat, it must be just exponentially more galling to see Brown deployed in this way. No, that's absolutely right. Brown versus Board of Education was such a transformative case in the canon of constitutional cases in this country, but more so in what it did to advance us from really a system of racial barbarism where we were segregated based on race. Black people and others were submitted to just the most ignominious conditions and laws. And that case ended legal apartheid in this country and is now being used to undo what is a very narrow and modest intervention to create more diversity in higher education,

when we are very cognizant of the fact that our K-12 system still has the effects of our segregated past and that there are raw racial disparities that leave Black and brown children in a worse position in terms of having opportunities to access higher education than white students. That's incontrovertible. It is beyond any dispute, and the court has recognized this and nonetheless is willing to entertain these arguments that really will take away from this court's legitimacy, not just in terms of forcing it to embrace a reality that just doesn't exist, but Brown conferred integrity on this court. Brown showed that the Supreme Court could see a precedent in its past that no longer met with modern conditions, that no longer served it as a growing, evolving democracy and could correct society by using its power as the third branch of government.

To reverse course calls this court's ability to serve our ongoing evolution as a democracy into question. And so for it to trade Brown in this way is extraordinarily dangerous. Do you think that the court is going to invoke Justice Marshall in the way that they invoked Justice Ginsburg in Dobbs? And if they do, will you go full Kyle Bragg, that is the SEIU leader in the New York affiliate, and issue a press release telling them to get Justice Marshall's name out of their mouths? Because that would be epic. And I would be here for it. I am going to hope.

Just say yes. I am going to hope that I don't have to answer any of those questions, that the court finds a way to do what is right in this case. We are obviously under no illusion about the threat that affirmative action faces and about the composition of the court. But I think the stakes in this case are so incredibly high for all the reasons that I've mentioned that I've got to think that the court respects itself enough to not upend the 44 years of history, certainly on the heels of what it did in reproductive rights, and will do the right thing here. Show yourself some self-respect, Supreme Court. Show yourself some self-respect. There you go.

Respect yourself. Exactly. That's right. I want that energy for myself, Janae, but going into this argument, I think I'm a little pessimistic about how this is going to come out. What do you think are the most important points for the advocates to emphasize at oral argument? And what do you think is going to be important here? And what should the public understand about how this all goes down? Well, I know that the oralists will do a phenomenal job. I'm also hoping that some of the justices will do the work of making clear what the distinctions are between Plessy and Brown and what the court's trajectory has been from Bakke to Grutter and Fisher. That's important for the American public to understand the history that this rests upon, to correct some of the myths that have been swirling in the media and in some

conservative discourse about the potential harm of continuing race-conscious admissions. So I think that people should be listening for an education, but I'm sure that some of the folks on the court will be trying to lay the groundwork and set the record straight in terms of what's what. So as not to muddy and disregard or disrespect the important history of this court and of the canonical cases. But I also think it's important to get the facts right. You may be hearing. Sorry, it's my puppy. She can hear the dog whistles in the briefs. Exactly. Exactly. All the truth. Leave it in, Melody. Leave it in. about the students in particular that we represent and the students and alumni who represent just a

wide variety of groups of interests, of decades of persons who attended these schools and who are standing up in support of affirmative action and recognize that their educational trajectory would be totally different if they were not able to take advantage of race-conscious admissions and a class that was composed with that in mind. Well, while you're getting all of that education also, listeners, I think there's also a strict scrutiny drinking game that you can also play. So when argument starts at 10 in the morning on Monday, Halloween, Monday, pour yourself a festive beverage, maybe a ginny tonic, maybe a hot ginny toddy, maybe just a pumpkin spice latte with a little shot of pessimism. And every time you hear colorblindness or Plessy or brown, take a drink and we'll see where you are at the end of this.

We'll see if you can go on and continue your day. I'm guessing no. By the time the trucker trading starts, it's going to be quite a scene. It's yeah. I mean, you're going to be blind drunk. I mean, color blind drunk, but it'll be interesting. That's our plan. We're going to be live tweeting all of this, obviously. So, Janae Nelson, thank you so much for joining us. This has been really fantastic. We can't wait to talk with you after all of this is over. It was great to be here. Thank you all.

All right, listeners, again, this is going to be argued on Halloween morning. So get all of your hot Ginny Totti fixings together. Get your Halloween candy for a spooky surprise at SCOTUS, and we will all listen along. Okay, and now we will move on to the other cases where we will be once again asking some version of the sometimes I wonder which one will be your last lie. And will these be one of them? I'm just going to keep doing it, Melissa. You can't stop me. You can't stop me. Melissa turned her video off. I would just like this noted. That is not okay.

I feel very personally attacked. That is a macroaggression. You used to do that when Leah would get real deep in habeas weeds. And actually, we were about to do that. So this is both responsive to midnight and habeas. Okay. The next case we wanted to preview is Jones v. Hendricks, a super important habeas case in which the court will consider whether people who are convicted of something that it turns out is not actually a crime or are sentenced to more time in prison than the law says they can serve

have a remedy for that violation? Like, that is, okay. It seems like the answer should be really obvious. That is literally the question in this case. This is one of those cases where I feel like we should do a segment on the podcast where we ask normies, like, here's the legal question that the court is going to confront. And then a normie, i.e., like, a nonlawyer, will be like, well, duh, obviously the answer is if you're convicted of something that isn't a crime,

you have a remedy. This just reminds me of those billboards on the highway. Like, have you been convicted of a crime that's not actually a crime? Call Bert. Am I right? The Supreme Court is basically going to say, take to the sea, right?

They're going to do the blah, blah, blah for this one. It's all so depressing. What's the basic issue in this case, Kate? So it's a little complicated. I mean, it's obviously the distillation of it that Leah just offered is exactly right. But the statutory scheme is a little bit complicated. So let me try to elaborate a bit without getting too in the weeds. Basically, the idea is if you have a federal prisoner who did not argue that the statute under which he was convicted didn't criminalize his conduct, but where he did not make that argument because circuit precedent was squarely against him. And then when he is barred by 28 U.S.C. Section 2255 from filing a successive motion to vacate

his conviction, whether he can file a habeas petition under Section 2241, if, and this is what Leah was just alluding to, if the Supreme Court then rules after his conviction and rules in a decision that is retroactive, so it does apply to the conduct for which he was convicted, if they rule that the statute under which he was convicted didn't actually criminalize his conduct, and that is what happened here. So like the circuit precedent was wrong, and he never argued against the circuit precedent because it was against him, and now it turns out the circuit precedent is wrong. And it was wrong. The court later says it was wrong and the conduct was not criminal. Well, this seems very straightforward. But dun, dun, dun. And yet.

And yet. The case turns on the meaning of the so-called savings clause of Section 2255. As a general matter, federal law prevents prisoners from filing what are known as successive motions, that is motions after their initial one, except when it comes to newly discovered evidence or new rules of constitutional law. But the Savings Clause allows an inmate to file a habeas petition if that remedy under 2255 is inadequate or ineffective to test the legality of the detention. And the petitioner in this case, Marcus Jones, was convicted of being a felon in possession and making false statements to acquire a firearm. At that time, Eighth Circuit

precedent held that the government did not have to prove a defendant's knowledge that he is a convicted felon under the Felon in Possession statute. Jones filed various appeals and posed conviction challenges on other grounds, including motions to vacate his conviction under Section 2255. But then in 2019, in a case called Rehaef, which we talked about extensively on this podcast, the Supreme Court held as a matter of statutory interpretation that the government must prove that a defendant charged with being a felon in possession knew of his status as a felon. And that didn't happen in the Jones case because, again, at the time, the Eighth Circuit held that that wasn't required. Right. So the question here is whether he can raise this argument in a habeas petition. Most circuits have held, yes, under the savings

clause in 2255, Jones can raise his claim in a habeas petition. The Eighth Circuit adopted the minority position, and that's actually a position that was pioneered by then-Judge Gorsuch when he was on the Tenth Circuit. And that position is that, you know, the saving clause does not permit him to proceed using habeas. Here, the federal government actually agrees that Jones shouldn't get to proceed, but it isn't defending the judgment of the Eighth Circuit. So the court appointed an amicus, as it sometimes does, and here appointed former Kavanaugh clerk Morgan Ratner, who's defending the judgment and arguing that this clause never applies when the change in law involves a matter of statutory interpretation. Federal government takes the position that, no, actually the saving clause exception to the bar

on these successive motions does preserve a narrow category of claims based on intervening statutory construction decisions, but just that here Jones can't get the benefit of Rahaf. So I think that the seemingly straightforward obviously answer to the question that Leah posed at the beginning of this conversation is likely not going to be what the opinion in this case looks like. Yeah. And because the fun just never stops at one first street. We also have another case we wanted to preview, Cruz versus Arizona, which I will distill into the following question. Can states avoid enforcing constitutional guarantees

because they repeatedly refuse to do so? So a little general, but I'll get into the weeds. Just give me a shot. Okay. Not at all reductive. The question is specifically about state post-conviction review, review in state courts after your initial trial and appeals. So we talked some about state post-conviction review

procedures in Reed v. Gertz, which is about getting access to DNA testing after your conviction. The question in this case is when can a state court effectively refuse to apply governing Supreme Court precedent in state post-conviction proceedings? Maybe because it's abandoned or because stare decisis is for suckers or because the Supreme Court has declared open season on any Supreme Court precedents that GOP-appointed judges might not like. Those are some theories. Those are theories. Those all seem kind of sound. So specifically, the question here arises from Arizona's refusal to apply the Supreme Court's decision in Simmons, which said that in death penalty cases, you have to tell the jury if the defendant isn't going to be eligible for parole if the jury rejects the death penalty. Right. Basically, you have to tell the jury, look, if you guys reject the death penalty, the defendant has no chance of being released if, in fact, that is the state of the law in the state where this trial is occurring. And Simmons arose out of South Carolina, and that

is all you need to know about what happened in that case. Just kidding. For years, Arizona courts refused to apply the decision on very questionable bases. Arizona formally authorized both natural life and life sentences, and life sentences meant someone is eligible for parole after 25 years. But Arizona then abolished parole for felonies in 1994. So parole wasn't actually available. And yet still, the Arizona courts said Simmons doesn't apply even though people convicted of felonies are not eligible for parole. And so after years of flouting Simmons, the Supreme Court in a 2016 per curiam decision, Lynch versus Arizona, was like, no, really, our decision in Simmons applies in Arizona. And they vacated an Arizona death

sentence because Arizona hadn't informed the jury that the defendant was never going to be eligible for parole. So naturally, defendants in Arizona filed state post-conviction petitions invoking Lynch, and the Arizona courts in those post-conviction proceedings said, you can't raise the Lynch claims. And their theory was pretty wild, like kind of a definitional heads-I-win, tails-you-lose kind of situation. So there's a state rule that you can only file a state post-conviction petition when there's been a, quote, significant change in the law. And the Arizona courts are like, well, applying Simmons to Arizona wasn't a significant change since everybody knew it should have applied. It's no big deal. Stop. I'm serious.

Wait, wait. So they're not applying it. The Supreme Court is like, no, seriously, you have to apply this. And they're like, nothing has changed. Nothing has changed because their theory is like when Lynch applied Simmons to Arizona, the court wasn't making new law, much less a significant change in the law. But it was telling you to do the old law, which you weren't doing. This is the problem. Their theory is it's so obvious Simmons should have applied to Arizona and doing so didn't require changing or expanding Simmons that you can't file a claim

now in state post-conviction that the Supreme Court has told Arizona to apply Simmons, but you also couldn't file one before because the Arizona courts were refusing to apply Simmons. This is just like rewarding bad behavior. That was what the Supreme Court did in the SBA case, right? They are inviting states to nullify decisions and rights with which they disagree. And that's part of what I was joking about. Like when I suggested the court has basically declared open season on precedents, you know, that the justices disagree with. And here in Lynch, like guess who dissented from that decision? Justice Thomas and Justice Alito. So, like, is it worth sending over a shot, seeing whether the court is actually going to enforce that decision now? I mean, the state might think so. Arizona is like, it's working for Texas, so we may as well give it a shot. Big Wonder Twins energy. It's not going to be a happy week, that first week of the November sitting. The second week is also going to be jam-packed. I'm not sure if it'll be any more uplifting, but we're definitely going to be closely watching the cases in that week. Those cases include the ICWA case, Holland v. Burkine, two low-key but I think really important administrative law cases, an important case about whether you can sue under Section 1983 to challenge legislation enacted under the spending clause.

But, dear listener, you're going to have to wait until our next episode to go deep on all of those. So let's take a few minutes to talk about some additional developments and breaking news from the lower courts. First, we have the latest installment of an ongoing segment that we are tentatively titling, The Fifth Circuit Did What? Or The Fifth Circuit Broke What? I mean, it could go any way. Last fall, the Fifth Circuit was allowing the flagrantly unconstitutional SB8 to go into effect. That was the first time that we issued this segment. And then last summer in Jarkasey versus SEC, the Fifth Circuit found various aspects of SEC enforcement to be unconstitutional. We actually joined friend of the pod, Jon Stewart. Is he a friend of the pod?

I guess we can say that. Yeah, I think we can call him a friend of the pod. He's our friend. Like our dear friend, Jon Stewart, that joined us to break that down. Actually, we joined him to break that down. Actually, we joined him to break that. I mean, what are facts? Anyway, this week, the all-Trump panel of the Fifth Circuit held that the method of funding that Congress chose to use for the CFPB is, wait for it, unconstitutional.

So the court relied on the Appropriations Clause of the Constitution, which said no money shall be drawn from the Treasury, but in consequence of appropriations made by law. And the court's theory was that the Congress's appropriations power is so exclusive that the Court of Appeals gets to tell Congress that they can't use their appropriations power to appropriate a separate independent funding stream to the CFPB. Wait, wait. Are you saying the Fifth Circuit's doing politics and not law? You know, it certainly doesn't look like law to me. Very vibe-y. But what if you start the opinion with Federalist 38? Then it has to be law.

Then it's automatically law. No. This is the latest instantiation of originalist hotboxing or maybe anti-administrative hotboxing or deregulatory hotboxing. But the idea that the appropriations clause requires this is insane. The money given to the agency is appropriated by law. It's just Congress in a law set up a different funding mechanism. And it wasn't the first time that they've done that. And it's not the only time they've done this, right, set up a different funding mechanism. And it wasn't the first time that they've done that. And it's not the only time they've done this, right?

The Federal Reserve Board has an appropriation scheme that isn't dependent on annual appropriations, as does the FDIC. And obviously all of those are unconstitutional. I mean, it's all fun and games until originalism literally brings down the global economy. Like, I am not really even joking. Like, I actually think the kid circuit absolutely has.

Because in 1787, Kate, we didn't have an economy. We were bartering. And that's what we should go back to. The originalist case for perpetual recession. That is, that is this for us. I love this for us. We're well on our way. Yeah.

Because when you're talking about inflation and gas prices, Democrats lose. That's the whole plan, folks. That's the plan. My transition to the next case is we're going to be the originalist case for other economic woes. I like that. It's smooth, fluent. I like it. I'm nothing but smooth.

I'm not going to transition in as smoothly as you transition out, Leah. But we wanted to flag an Eighth Circuit opinion. The Eighth Circuit is basically giving the Fifth Circuit a run for its kind of YOLO money just in this last week. So the Eighth Circuit issued an order I still don't understand what to call. Like it's styled as a stay. It seems actually to be an injunction. And it maybe has the effect of temporarily putting on hold the implementation of the Biden administration student loan forgiveness plan, right? That sounds right to me. I think the technical term is kibosh. It is a kibosh. It's not actually a stay or an injunction. It's just kibosh.

It's just kibosh. Yeah, YOLO kibosh. Labels be damned. It doesn't really matter what to call it. But basically, it was like, you know, they didn't like Dark Brandon's move here. And so they decided to stop it. The plan, as people I'm sure know, would cancel up to $10,000 in student loans for certain borrowers. And then there's additional forgiveness for Pell Grant recipients. And tens of millions of people have already applied. The administration has said it will start actually erasing debt in November. But there have predictably been some challenges by opponents of forgiving

student loans. So first, a group of Wisconsin taxpayers filed a suit and the lower courts correctly found that just being taxpayers isn't enough to get a federal court to listen to your arguments about why something the government is doing is unlawful. Which every first-year law student knows. I mean, I don't even know what every first-year law student is going to know a year from now, truly. It was so crazy. And I remember, Leah, you saying like, surely even this Supreme Court is going to see how ridiculous this effort is. That was I said about the taxpayer standing suit.

Yeah, the Wisconsin one. Yes, yes. Yeah. And you're right. The Wisconsin group tried to get the Supreme Court to intercede and just Justice Barrett acting alone rejected that request without any comment. But in this case, some Republican states have filed suit. Their suit was dismissed on standing grounds in the district court. But last week, the Eighth Circuit stayed the order dismissing the complaint and purported to somehow block implementation of the program. And it's just not clear what authority they have to do that. They were just, you know, enjoining a policy. They're enjoining a policy, I think, functionally that the lower courts never even addressed the merits of. But, you know, the Eighth Circuit is clearly getting ideas from the Fifth Circuit. And so here we are. Look, it's because if you look at Article Three, it says the judicial power shall

extend to cases and controversies and major questions that Republican appointed judges don't like. So did the Corpus Linguistics analysis. That's implied, Leah, and really has to be deeply rooted in the history and traditions of this country, which it obviously is. That was what Federalist No. 36 was about, by the way. Yeah, for sure. In other news, Senator Lindsey Graham is fighting very, very, very hard to avoid testifying before a Georgia grand jury that is looking into former President Trump's efforts to change the outcome of the Georgia election. Graham was subpoenaed to testify before the grand jury, including about phone calls he personally made to election officials. He went immediately to federal court, arguing that the Constitution's speech or debate

clause shielded him from such inquiries. And he was actually partly successful in the district court, which placed limits on what he could be asked. But that court would not actually block his testimony entirely, and neither would the 11th Circuit. They basically told him that the speech and debate clause did not go that far. He has since filed an emergency application before the Supreme Court. And wait for it, listeners. He is represented by our good friend, friend of the pod, former White House counsel Don McGahn of Jones Day. And they've asked the court to intervene

to issue an emergency stay. And as we're recording, the circuit justice for the 11th Circuit, wait for it, one Clarence Thomas, has issued an administrative stay. This does not necessarily indicate how he or the full court will vote on this issue, but it does suggest that unlike his colleague, one Justice Gitanji Brown Jackson, Justice Thomas does not have the same recusal energy going on right now. So he is not recusing himself, it seems, in cases relating to January 6th and any attempt to intervene in the results of a validly conducted election. And that all seems copacetic. Yeah, I can't think of any reason why he might need to recuse in those cases or why there might be an appearance of bias or impropriety for him to participate in

cases about communications related to overturning the results of a duly conducted election because no one he knows or is close to or with whom he definitely does not. Do we know who's out with ladies? What? Ladies. I think Georgia might be the one state she wasn't communicating with officials in. I've seen nothing. That we know about. I we know about. And we're not going to. It all again, it doesn't have to be an actual ethical violation. It just has to give the appearance of impropriety to be really problematic. But again, this is a court that's kind of like, whatever. Optics who? Speaking of democracy being up on the up, we have a subpoena for

the former president, Donald Trump. The January 6th committee has now subpoenaed Trump to provide documents and testimony related to their charge and investigation. My guess is this is unlikely to go anywhere before the results of the midterms. And if, as projected, Democrats lose the House of Representatives, this subpoena is going to become moot when that new majority dissolves the January 6th committee. I know the New York Times had all of that polling, but it's one poll, and there are other polls that suggest that maybe it's not going to be

this Republican butt butt. All I want to say is that if you're thinking, like, maybe I shouldn't vote in this midterm election because everything looks terrible and gas prices are really high and inflation and everything. I just want to note, they literally took away your rights in June. And this is kind of like a proving ground. Like if you're okay with it and you sit out this election, you're basically saying, you know what? Take all my rights. Take them all right now. Like this election is a referendum, not just of Joe Biden, but this court. If you want that subpoena to actually go forward, you better get out and vote so we can have a good time with that subpoena for documents and testimony. I mean, look, that's by far not the most important reason. I mean, most as you're saying, yeah. Well, I mean, I know everyone's talking about democracies on the ballot,

and it seems like really sort of elusive and esoteric for people to sort of figure out what that means. Here's what it means in concrete terms. They took your stuff. If you're not going to go to the ballot box and say, you can't take my stuff, they're going to take more of your stuff. Stop taking my stuff. The stuff here is your bodily autonomy. And everything else. That's the most important stuff. Right. But that's, I think, the big thing that they just took. And I mean, so the Senate- But not the last thing. No. Well, I think it somewhat does depend on what happens in November, at least in terms of the kind of pace. This court has this conservative supermajority. And at the moment, defense is the

most important thing. But there's still a ton of lower court vacancies. So hanging on to the Senate is, you know, for the Democrats is absolutely a possibility. And if that happens- Julie Rickleman on the First Circuit. And she'll hopefully be confirmed before either way. I don't know. Like, we don't know what's going on. Like, I mean, she just had her hearing. Well, hopefully they're going to do in the lame duck everything they can, regardless of whether there's going to be a changeover in January. But holding on to the Senate for the Democrats is a very real possibility. But obviously, it's going to come down to turnout in a lot of critical states.

So just everything Melissa just said, so true, so important. I just want to like echo and underscore one thing that Melissa said in like a slightly different perspective about like they just took away this fundamental right that is so important in such profound ways to so many people's lives. And the question is, like, are there going to be consequences for that? Because for many years, we heard talk about how some progressives on the left, this was happening even in the lead up to Dobbs, like they wanted the court to just overrule Roe because they said if that's going to happen, the Republicans, the court would face electoral consequences. I was never especially sympathetic to that narrative, both because it

minimized the profound human suffering that would happen over the period of time that it might take to provoke a political backlash, but also because I thought it was like overly simplistic and ignores how voting and electoral processes work if you look at anything that has happened in the past. But the point is, if that doesn't happen in the very first election, after, again, they just so fundamentally disrupted something that is so important to, again, like people's control over their bodies, their families, their lives, their destiny, like what would give them a second's pause before any future decision in which

challenges to their legitimacy, the power of the court or political pushback are being dangled in front of them. There's no reason to pause if this doesn't have any consequences. And that's one thing. And then the second is, you know, as someone who lives in Michigan, when you say democracy is on the ballot, like democracy is on the ballot, because what happens in 2022 will affect what happens in 2024. Since in a bunch of statewide races, you know, Melissa, I know you narrated like a piece about this. We are electing secretaries of state, statewide officials, attorneys general who are supposed to certify the results of elections in states. And if you are electing election deniers to those positions, what's

going to happen, right? I'm guessing elections will be denied. Where the votes, Right, exactly. And so these are concrete things that could happen, almost happened in 2020. And I am also despondent and scared and frustrated about so many things, as my narration about basically all of the court's cases suggest. And yet I am still right out doing everything I can, voting among other things, and it is worth it for you to do that as well. Get in the game. Get in the game. It's go time. Exactly. On a more uplifting note, can I now share my theory about vigilante shit? Yes. Yes. Okay. So here's my theory. I'm going to read some lines and then I'm going to float the theory. I don't start shit, but I can tell you how it ends. The ladies simply had enough.

While he was doing lines and crossing all of mine, someone told his just blank crimes to the FBI. I think this is about Justice Kagan's clapback to Sam Alito, right? And like all of the narratives about the court's legitimacy. Look at this. I don't start shit, but I can tell you how it ends. The ladies simply had enough. I'm sticking with it. This is my theory. The lines are obviously not illicit substances, but just bad decision writing. Exactly. Exactly. Lines from the opinions in Dobbs or like lines of institutional propriety.

And again, if Taylor Swift, if she disagrees with this assessment, she's welcome to come on the podcast and discuss this with me and tell Justice Kagan that actually her lyrics in Vigilante Shit aren't about her. And like we can process this as a group. Taylor can come on. That's my offer. This is a Karlie Kloss-free zone. An amazing period. She can come. Yeah.

She can come. It's great. Yeah. Do we need to end? Post-Bruin fallout and then we'll do the closer. Post-Bruin fallout, Kate. Like I'm guessing I know. It's bad.

It's bad. As you said, it's not just Dobbs. It's really, I mean, so, you know, Bruin, reminder, was a June case in which the court struck down this century- June 23rd, Justice Clarence Thomas's birthday. Happy birthday to me. They're really marking all the big events, Thomas's birthday, Halloween, yeah. And they scheduled the independent state legislature case for Pearl Harbor Day. Oh, my God. Pearl Harbor Day, the attack on America. Just going to float that one now. Wow. I hadn't caught that. Yeah. So, you know, I don't know. Irony is dead. Irony is alive. I'm not sure which at the Supreme Court. But so Bruin, June case, the court strikes down this New York law that required people who wanted to carry concealed weapons to show some need or reason to

do that. And in striking that law down, the court announced this new and totally ill-defined standard for evaluating all gun regulations, which was basically that they need to be grounded in the nation's historical tradition of firearm regulation. And now, less than four months post-Bruin, I think it's pretty clear that all hell is breaking loose when it comes to lower court's originalist hot boxing about gun laws. These laws are going down left and right. In recent weeks, just like to take off a few things that have happened, a district court invalidated New York's ban on handguns in, wait for it, places of worship. This is after invalidating social media background check requirements and bans on guns at domestic violence centers and summer camps, although that ruling has been stayed by the Second Circuit. A West Virginia district court invalidated a federal prohibition on possessing a firearm with a removed or obliterated or altered serial number.

With this, you know, kind of like freelancing in the opinion about how, you know, there's not an analog in history to limits on possessing firearms without serial numbers because there were no serial numbers. I mean, everyone knows that Alexander Hamilton had a barcode scanner, people. Like, obviously. There were no serial numbers. There were no summer camps in 1791. Ergo, all these laws must fall. That is basically the level of analysis we are seeing in these opinions. QED. QED. Yeah. I mean, but that's what the court has unleashed. I think to the extent that it was a little unclear just how the lower courts were going to implement the kind of madness of the method, it's becoming clear and it's really scary. Yeah. Spooky. Cool. On that note.

Spooky. Is there a Taylor Swift note we can end on that's going to be more uplifting? Mastermind. Justice Thomas, mastermind. Yeah. That's definitely not uplifting, but it is true. On an uplifting note, I went to my 20th law school reunion where a whole bunch of law students came up and said that they were fans of the show. So thank you all for listening. Thanks for saying hi. I'm going to call out Alphonse, Caroline, and Rosemary. Thanks for saying hello and introducing yourselves. And thank you for continuing to listen wherever you are. So Senator Booker was at your reunion. And I saw a picture, a cute picture with him.

He maybe, I don't know who's going to be on the pod first, Taylor Swift or Cory Booker. But he might entertain an invitation. I think so. I think so. OK. I also resent the people on Twitter who talked about how short I was compared to him. Like, focus, people. You're a perfect height.

Obviously. Obviously. Okay. That's a better note to end on. Before we go, just a reminder that Election Day is coming up fast. And you know what that means. T-shirts. Oh, and obviously voting.

Get yourself and everyone around you pumped to get out the vote with new merchandise from the Crooked store. We've got merch to shout out voting, as well as all of the most important issues, from abortion rights to filibuster reform. So treat yourself to something that represents what you stand for, like an I Voted sticker you can put in the washing machine. Get some gear and gear up for Election Day at crooked.com forward slash store. We've also got big news from a member of the Strict Scrutiny Extended Universe, our producer, Melody Rowell. She's been working on the newest podcast from Crooked, Work Appropriate. It's hosted by writer Anne Helen Peterson, who will team up with a new guest host every week to answer listeners' questions about work. We know strict scrutiny

listeners have wild tales of work, and we're not just talking about big law, academia, and clerkships. You can head to workappropriate.com to submit your questions. And be sure to listen and subscribe wherever you get your podcasts. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell. Audio engineering by Kyle Seglin. Music by Eddie Cooper. Production support from Michael Martinez, Sandy Gerard, and Ari Schwartz.

Digital support from Amelia Montooth. And special thanks to Janae Nelson for taking the time to talk to us today. It was great to have her.