Strict Scrutiny - Per My Last Email

Episode Date: October 18, 2021

Kate, Melissa, and Leah recap the last week of the October sitting and some developments in the S.B. 8 litigation. 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 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. I'm Alyssa Murray. And I'm Leah Littman. So today we have a jam-packed show for you. We will start off the top of the show with some

breaking news, and then we'll head into recaps of the October sitting, and then we will shift into court culture. So on the news, which seems like it happens every single episode, we have some developments regarding SB8, the notorious law that has effectively shut down abortions in Texas after more than six weeks from a person's last period. Okay. So in the federal government's challenge to SB8, as we noted last week, the Fifth Circuit issued an administrative stay of the district court's injunction against Texas SB 8. In the stay briefing, the United States described, I think, truly horrific conditions in Colorado, New Mexico, and Kansas, how clinics are seeking an influx of patients. Texans now account for the majority of

patients at one Oklahoma clinic. It also describes how particular patients, like teenagers or undocumented immigrants, say financial and child care constraints are limiting their ability to leave Texas. Anne Maramau at the Washington Post has some great reporting on this. So anyways, late Thursday night, the Fifth Circuit made that administrative stay permanent, which means the district court's injunction against SB8 is not in effect, and SB8 is in effect. The United States has since announced that it will go to the Supreme Court and ask them to vacate the Fifth Circuit's

stay and or hear the case, perhaps on an emergency basis. The Fifth Circuit did expedite the arguments in the case, but not until the first week of December. On December 1st, of course, the Supreme Court will hear the Mississippi abortion case in Dobbs, and at least until that time, unless the Supreme Court takes some action, SB 8 will remain in effect. And again, that law effectively prevents providers from performing abortions more than six weeks after a person's last period. In the extremely cursory order that the Fifth Circuit issued, in which it said we're going to stay the injunction, it said the stay was granted, quote, for the reasons stated in Whole Woman's Health v. Jackson, the Fifth Circuit opinion, staying the proceedings

by the abortion providers against the various state officials, as well as Whole Woman's Health v. Jackson, the Supreme Court opinion. That is like per my last email. But it wasn't in the last email. Only exactly. It's utterly, utterly inapplicable here because the reasons that the Fifth Circuit and the Supreme Court gave. The complex and novel antecedent procedural questions presented by the case brought by the clinics are actually not present in the case brought by the federal government.

That seems like an important distinction the Fifth Circuit doesn't mention. Huge distinction, but also huge flex to just basically write. I put it in my last email, just go back and read it. I mean, it's a little snarky. Yeah. Not only is it snarky, I think it illustrates like the Fifth Circuit just doesn't think they need to give any reasons here. Like, we have entered a law-free zone where it is truly just about power in a lot of ways. And that was on display here. You know, again, the procedural issues in the provider's lawsuit are like, have you

named the correct state official? That entire doctrine just doesn't apply here because the United States has sued Texas, which it can do as the federal government. So they don't have to identify a particular state official. It's just, you know, again, they don't they don't care. They don't think they even have to bother. I mean, what if the Supreme Court does the same thing? Our last email on September 1st. Which Justice Alito claimed we don't treat as precedential, by the way. I mean, again, like here's the Fifth Circuit treating their stinking order as precedential, you know, after Justice Alito delivered this speech exactly saying these orders aren't precedential. It is. It's crazy making.

Yeah. Yes. To add to the pile of crazy making, I wanted to flag a brief that came in to the fifth circuit from none other than strict scrutiny fan boy, Jonathan Mitchell. Hey, Jonathan. Thanks for listening.

Thanks for your support of our glow campaign you're the best so let me read part of this I think it's great um he's not actually a strict scrutiny fan boy what he is a fan boy of is devising cunning procedural mechanisms to avoid federal court review and injunctions um like the one in SB8 because he is the architect of SB8. Anywho, in defense of SB8, he wrote a brief in which he noted, quote, the states also have tools in their arsenal to limit the judiciary's opportunities to pronounce their statutes unconstitutional, although their options are more limited. The states, unlike Congress, cannot enact statutes that strip the federal courts of jurisdiction to consider constitutional challenges to their laws, but they can structure their laws in a manner that reduces or eliminates opportunities for pre-enforcement challenges.

And that is what Texas has doneed out the judiciary from entertaining pre-enforcement challenges under 42 USC section 1983, an ex parte young, and has left abortion providers to assert their constitutional claims defensively. The federal and state political branches have every prerogative to adopt interpretations of the Constitution that differ from the Supreme Courts. At this point, Cooper versus Aaron pulls up and says, I'd like a word, but on. And they have every prerogative to enact laws that deprive the judiciary of opportunities to consider pre-enforcement challenges to their statutes. Y'all, what to say about this? Again, I feel like the providers and the United States have previously been making the argument

that the structure and design of SB8 illustrates that its intent was to evade pre-enforcement review. And here, Jonathan Mitchell just wrote it in a brief. The quiet part loud. Right. Exactly. Making the subtext the text. But the last part is wild.

It gets even wilder, I think, in which the brief goes on. Are you going to talk about George Scott? Well, that's one of the passages I wanted to talk about. It says, the Supreme Court's italics interpretations of the Constitution

are not the Constitution itself. They are, after all, called italics opinions. Like, that's just your opinion, bro. I mean, this, the brief might as well have been captioned under the subheading, fuck you, John Roberts. Like, it is a giant thumbing of the nose at the Supreme Court, the court's power to interpret the Constitution. That's not even the most insane. Can I read another part of this brief? Oh, please.

We could have a whole episode about this brief. This is my favorite part. The political branches can never disregard or undermine a judgment that the judiciary enters in a case or controversy between parties. Even President Lincoln acknowledged that Dred Scott must be returned to his master. What? Like when Dred Scott is on the table, it's like evidence that you're citing, like you've gone too far. Yeah. But Melissa, he's Abe Lincoln in this example. Texas is Abe Lincoln. It is again. And, you know, you mentioned and also in a previous episode, Cooper versus Aaron, and I really think it is this kind of rhetoric about the court's lack of authority and how judicial interpretations of the Constitution aren't binding about how, no, there's this thing called interposition where states don't have to abide by Supreme Court judgments. And all of that led to the Supreme Court saying, no, no, no, you actually do have to respect our opinions.

I don't think that's necessarily going to happen here, but it is stunning that you see the same rhetoric and, again, open defiance. And I actually think this feels to me like a real overplaying of a hand by this kind of drunk on power and success so far at evading judicial review. I don't think just John Roberts

is going to find this rhetoric pretty offensive. They all have enough institutional vanity that I think that other members of the court beyond just the three liberal justices and John Roberts may find this a bridge too far. And so I could see it backfiring. I'm not so sure that that's true. I'm not so sure that's true. I'm not saying I'm sure it's true. Yeah, no, no, no. Like the brief is also peppered with references that purport to make it unique

to Roe about how abortion isn't a constitutional right. It is a court invented right. You know, citations to John Hart Ely. But the point is that different groups will say the same thing about different decisions. It's a completely dangerous narrative, one that we saw play out in the 1950s, and it ended with the National Guard going to Little Rock. I don't know if that's going to happen here, but you don't make arguments like this without that being the only endgame in terms of restoring equilibrium to the system. So the federal government is going to seek Supreme Court intervention. So that's the United States suit right now. Meanwhile, it has been three weeks since Texas abortion clinics asked the Supreme Court to expedite their petition for cert before judgment,

challenging the Fifth Circuit's handling of their case against SB8. There have been two proposed response dates that have passed with no action. So the Supreme Court has sent very strong signals that it is in no hurry to act on the request by the clinics to consider restoring the constitutional rights of its citizens. And I'm not sure that this bodes well for the urgency with which the court will act on

the federal government's request, but we will see. As Sam Alito told us, this emergency docket work is very, very hard. It's exhausting. Yeah. They are working under incredible time constraints, Kate. I think you have to understand and be a little more forgiving. Seriously. What are you, like, you have kids or something?

Well, he's been busy planning his speeches. I mean, in that three weeks, how many speeches have you given? Skin care takes a long time. He's got to bathe himself

in olive oil just like Jennifer Lopez. Is that the glow? Is that how she gets it? That's what long time. He's got to bathe himself in olive oil, just like Jennifer Lopez. Is that the glow? Is that how she gets it? That's what she said. Wow. Okay. Goes to Trader Joe's.

Yes. Can I go draw my olive oil bath? In other news, Justice Sotomayor appeared by Zoom at an event celebrating the fifth anniversary of New York University Law School's Center for Diversity, Inclusion, and Belonging. Justice Sotomayor was in conversation with Kenji Yoshino, the Chief Justice Earl Warren Professor of Law and the Faculty Director of the Center for Diversity, Inclusion, and Belonging at NYU, and she had a little bit to say about interruptions and gender disparities in the

court's oral argument practice. Let's have a listen. Actually, this is another question that goes not to interpretive strategies, but more of the day-to-day life of your work on the court. A few years ago, the researchers Tonya Jacoby and Dylan Schveers published the results of an empirical study titled Justice Interrupted, the Effect of Gender, Ideology, and Seniority at Supreme Court Oral Arguments. They found, based on examination of oral argument transcripts, that female justices were disproportionately interrupted by their male colleagues and by male advocates. Similar results obtained in a study of gendered interruptions on the Australian

High Court. Have you noticed this dynamic on your time on the court? And how do you respond when you get interrupted? Well, I respond in a way that perhaps I shouldn't, which is I interrupt back, which is not the ideal way to respond. As a credit to those researchers, by the way, Kenji, I know there's often conversation as to how much influence research has on the courts. In the case of that study, I think it had an enormous impact. I know that after reports of that finding came out, that our chief judge was much more sensitive to ensuring that people were, if not interrupted, at least that he was playing referee when interruptions happened and ensuring that people got back to the judge who was interrupted. I also found that my colleagues are much more sensitive than they were before. You will see us even now when we're speaking, a judge will say,

I'm sorry, did I interrupt you? And if you say I was going to finish something, they'll say, please go ahead. That did not happen as much before. And so that study had a great impact. If your question was, did I notice it as a dynamic without question before the study came out? But I don't know of a woman who hasn't. Meaning, regrettably, that's a dynamic that exists not just on the court, but in our society in general. Most of the time, women say things, and they're not heard in the same way that men might say the identical thing. I don't think there's anyone in the room who has ever been in a large group where a woman says something and there's no immediate

response and a male picks up the same theme later and there's excitement and engagement. It used to happen, I noticed, with great frequency to Justice Ginsburg. Now here is a woman who no one doubts was powerful, yet she was small in stature, diminutive, and she had a very, very soft voice. And it was not unusual for when she said something for it to either not be heard or not fully grasped. And as a result, often things that she had said would be picked up by others and made their own without attribution. It is a nature of our discourse as men and women that that inclination of disregarding women is all too common. I think that study, however, had a great impact on the dynamic of my court, and I suspect on the dynamic of other courts as well. People paid attention. Again, we're really grateful to the NYU Law School Communications

Department and the Center for Diversity, Inclusion, and Belonging for allowing us to use that bit of audio in the podcast. And I'm just going to say, I think it's great that Professor Yoshino raised Tanya Jacoby's study, but I am a little surprised, Leah, that he did not mention your fantastic study from last term called Muted Justice, which talked about the new seriatim format and the ways in which even in that very specified structured format, the justices still managed to sideline some of their female and colleagues of color. So that is available at the Pennsylvania Law Review online, Muted Justice by Leah Littman. Okay, a couple other bits of news.

One, the majority staff of the Senate Judiciary Committee issued a preliminary report on how President Trump and his allies pressured the Justice Department to overturn the results of the 2020 election. It's a pretty horrifying read, honestly, just a window into how serious the efforts were by both Trump and DOJ official Jeffrey Clark to get the Justice Department to pressure states to literally throw out their election results where those results favor Joe Biden based on truly unhinged conspiracy theories and to appoint Trump electors outright. I mean, committee reports aren't always like a riveting read. And this is actually very much worth reading at least like the first 20, 30 pages.

It's a long report. But, you know, I feel like the evidence comes out by the day of just like how close American democracy came to an absolute collapse. And I think it's important to kind of keep that front of mind. There was also some news slash non-news out of the President's Commission on the Supreme Court. Specifically, the President's Commission on the Supreme Court released a set of draft discussion materials. And the materials seemed designed to take the wind out of the sails of public debate around court expansion, as well as other reforms

like jurisdiction stripping, although they did seem more open to term limits and various transparency reforms. So that was kind of the non-news since in a lot of ways this was entirely expected given the composition of the commission and other things as well. Well, and its size, right? There are 36 people on this commission and it's really difficult to get a 36-person commission to agree on a set of actual recommendations, even if that were within the mandate, which I gather the co-chairs don't understand that it is. You know, sort of recommendations are not within

their mandate seem to be the clear view of co-chairs Bob Bauer and Cristina Rodriguez. There are a lot of phenomenally smart, talented people on the commission. We are going to talk more about the work of the commission in future episodes. I mean, one thing I'll say, in addition to the draft materials that Leah just mentioned, there was a public meeting Friday. Actually, it's ongoing as we are sitting down to tape. And I think that it is pretty clear that some of the commissioners want to be more forward-leaning than the materials released yesterday suggested. You know, I thought the debate, at least I sort of dipped in and out, many hours of debate was actually really thoughtful and smart and important. And I hope that the future materials that come out, right, again, these were very preliminary discussion materials released yesterday, reflect more of the flavor of the debate that occurred today, at least the pieces of it that I caught. Can I ask a question about that? I mean, because I think you're right that the in-person debate

at the meeting on Friday outpaced the draft, which was distributed to the public the day before. Why do that? Why release a draft that was perhaps less fulsome and considered than the actual commentary from your commissioners? I'm not sure it was a great call, honestly. The draft seemed to have a lot of kind of, on the one hand, on the other hand, takes on many of the questions, which I'm not sure, you know, compiled a lot of academic debate and literature, but didn't seem willing to commit to anything. And, you know, and again, I... And that very format, like as some of the commissioners in the debate you alluded to noted, just implied a false equivalence across the board in so many different contexts where it was unwarranted. And, you know, that was one of several negative reactions to the draft materials. To be fair to them, they said these were draft discussion documents.

But I mean, these are people who are pretty politically savvy. They had to know that releasing this in advance of the meeting would sort of become the news story, not the meeting itself. Yes. I liked how they all called each other commissioner. I think we should start calling each other. Podcaster Shaw. A little update on the Wall Street Journal report on federal judges, perhaps violating the law and certainly ethical standards. The Wall Street Journal found that 61 judges didn't just own stocks of companies that were appearing in their courtrooms as litigants.

According to the reporting, the accounts that were held by the judges and or their families were actually trading shares in these companies as suits involving the companies were progressing in those courtrooms. And again, nearly half of those reported more than one trade while a case was underway. So this is actually kind of mind-blowing. I'm surprised it hasn't gotten more attention than it has, because it's actually really surprising. I mean, think, Kelly Loeffler and the stock trade last year, which occupied so much of our attention during the election cycle. Like this is a big deal. And again, I come back to, can't y'all just get mutual funds? Like that's how the plebes do it. Just do that. Right. Very strange. Very strange.

Let's get into the meat of the October sitting. Let's recap some cases. I will just note once again that maybe this is not the Roberts court because strict scrutiny fanboy Clarence Thomas, once again, out of the gate asking questions, making up for 30 long years of silence. We have such a broad and diverse audience with Jonathan Mitchell and Clarence Thomas as strict scrutiny fanboys. They probably have listening parties, right? Right. With Sam, definitely. Mark Moran is not our only fanboy. Okay, so let's jump right into the recaps. The first case we wanted to recap was Thompson v. Clark. This is a case we actually didn't get the chance to preview in state court, but where the state court did not affirmatively

indicate that the individual was innocent of the charges filed against them. The case pertains to the intersection of two federal statutes that govern civil rights litigation. First is the federal habeas statute, which contains a bunch of restrictions on your ability to challenge state court criminal convictions. And the second is Section 1983, the civil rights statute that allows you to sue state and local officials for violating your civil rights. And the basic question in the case is what is the relationship between the two statutes? So in a case called Heck v. Humphrey, the Supreme Court held that when you're bringing a Section 1983 claim that would necessarily call into question the validity of a state court judgment or state court proceedings, you have to show that the state court proceedings ended in a way favorable to you. This is sometimes called the favorable termination

rule. And the upshot or implication is that you can't sue under Section 1983 when you're challenging some proceedings in state court until those proceedings terminated in this way favorable to you. And, you know, so that's when you can sue. So in legal terms, we say that your cause of action accrues then. So you have permission to sue only at that point. And the question in this case is whether you can sue when the state court proceedings against you ended, when the prosecutor and state court dismissed the charges against you, but where they didn't say we are dismissing the charges against you because you are innocent. So I want to talk briefly about the federal court's angle to this case before discussing how it relates more broadly to police accountability and just policing and criminal law more generally, because I actually think from a federal court's perspective,

the case is a pretty easy one. And I say that because of how all of the statutes you listed, Kate, as well as various federal court's doctrines are supposed to overlap. So to the extent Heck v. Humphrey and related cases are about ensuring people do not sidestep the various limitations contained in federal statutes governing habeas review. Those concerns aren't at all applicable here. There's no state court conviction to challenge, so the habeas statute doesn't speak to this case. And to the extent the habeas statute and related doctrines are about respecting state court processes and requiring people to make claims in state courts first, those reasons also aren't implicated here. The federal civil rights litigation wouldn't call into question a state

court judgment and suggest they got anything wrong, nor would it deprive the state courts of any opportunity to hear any federal claims. What the case does, however, raise are broader questions about how and whether the judicial system provides for police accountability and responds to harms that disproportionately fall on communities of color. Because if the court says, well, you can't sue until there's some favorable termination affirmatively indicating your innocence, that could insulate a bunch of false arrests and malicious prosecution claims from any constitutional civil rights challenges. There are multiple ways and many reasons for state officials to dismiss charges without affirmatively indicating someone's innocence. So at bottom,

the question in this case is kind of whether there will be accountability for false arrests or malicious prosecutions. Again, in the vast majority of jurisdictions, prosecutors aren't required to and generally don't make affirmative statements about the innocence of the accused when they dismiss charges. So that would mean the dismissal of the charges would bar a civil rights claim that the charges shouldn't have been brought in the first place, which is Kafkaesque in the way we were kind of suggesting earlier about SB8. And the reality is that it's often people of color who are the victims of false arrests. Think about resisting arrest charges or a million other kinds of charges that are instituted before being dropped. I did want to highlight this amicus brief put together by the Boston University Center for Anti-Racist Research, an initiative spearheaded by BU Law Dean Angela Unwachi-Willig.

An actual fan. An actual, yes. An actual fan on the show who we really need to have on the show. You only briefly heard her voice at our live show at BU during the before times. Anyways, Dean on Watchie Willig is actually the counsel of record for the brief, which highlights how a requirement that prosecutors affirmatively indicate innocence would prevent courts from hearing claims against police officers who fabric Charges Against People of Color. The brief specifically highlights how police officers have pursued false charges to cover up accusations of excessive force, claims of constitutional violations, and also just a massive false drug and gun charges operations. I know you've highlighted the federal courts aspect, Leah. There's also, I think, a family law aspect to this as well. The facts of the case are really quite interesting. What drew the police officers

to the Thompson household was that Mr. Thompson's sister-in-law, who has cognitive delays, called the police to report signs of child abuse. And when the police came to the apartment, Mr. Thompson refused to allow them in because he didn't know why they were there. And emergency medical technicians took the child to a hospital and confirmed there were no signs of child abuse and that the red rash that Mr. Thompson's sister-in-law had referred to was actually a diaper rash. But the police nonetheless filed resisting arrest and obstructing investigation charges against Mr. Thompson. So this is sort of a classic situation in the child welfare system. The child welfare system, I think, disproportionately impacts families of color far in excess of their

representation in the general population. So there's a way to sort of understand this also as an important case in terms of family law and the child welfare system. The case was argued by Amir Ali, who has been a guest on this podcast and is on the board of the Appellate Project, and we've done some work with them. He was arguing on behalf of Larry Thompson, the father who was charged with resisting arrest. He's a new father, right? Like, am I wrong that baby was like a week old? Like, can you imagine you have been home from the hospital for a matter of days and this ensues? Like, it's so horrifying. And the point I think that Amir Ali is making and arguing on behalf of Larry Thompson, who wants to bring the civil rights claim, is that he could sue even though the state courts hadn't

affirmatively indicated Mr. Thompson's innocence because the dismissal of the charges against him was consistent with his innocence. There was nothing wrong with the child. There was no child abuse at issue here and no reason for Mr. Thompson to have been hemmed up in the first place. So again, I think this is such an interesting case, not just because of the federal courts aspect, but this really interesting family law wrinkle and then some really fantastic advocacy. So Leah, you listened to all of this. What did you think? Yeah. So Amir is, as we've talked about before, a really gifted advocate. The justices ended up keeping him at the podium for what seemed like, although I didn't do the precise counting,

like maybe close to twice the amount of time that he was supposed to be there. I think he's going to win. But I think it will be close and certainly closer than it should be. And the case raises what for federal courts and civil rights litigators is a sometimes interesting question, which is, is the court deciding a statutory question that is when Section 1983 authorizes you to bring suit? Or is it deciding a constitutional question, namely, whether the Fourth Amendment prohibits arrests pursuant to legal processes? And what exactly are the elements of a Fourth Amendment claim? And here, it seemed like some of the justices really wanted to talk about the merits of the Fourth Amendment claim in a way that distracted and I think detracted from the question presented the court had granted to decide and what the issues were supposed to be about. So here's a question

from Justice Gorsuch that encapsulate this. It's supposed to decide what the elements of a malicious prosecution claim are under the Fourth Amendment if we're not sure such a thing exists. The thing is, that's not the question on which the court granted cert, and it's actually not at all necessary to decide the case, right? So the Second Circuit here resolved the case by saying a plaintiff bringing this kind of claim must show favorable termination of their criminal case. That means a termination that affirmatively indicates innocence. That's not consistent with what most of the courts of appeals have done. And so Kagan responded.

And maybe let's play that clip here. I actually don't think that this is briefed at all in this case. What's briefed in this case is the question of what the favorable termination rule is, whether it's petitioner's version or respondent's version. What's not briefed in this case is whether the most analogous toward under common law was malicious prosecution or something else. And then she emphasized this again. No, that was not what I was suggesting. I was suggesting deciding the question presented here and sending it back to deal with your arguments about how that in the end won't do the petitioner any good. And it was just like, the justice got so fixated on this issue at oral argument. And at one point, Justice Breyer was like, oh, hang on.

Didn't we grant cert to decide whether favorable termination requires an affirmative indication of innocence, not whether favorable termination is required at all under the particular substantive claim that Mr. Thompson is raising? So let's play that clip too. Well, that's true. I'm now slightly confused because I usually read briefs and I thought the question presented, I didn't know about all this 1983 business. It's something they said in the second circuit, a plaintiff asserting a malicious prosecution claim under 1983 must show that the underlying criminal proceeding ended in a manner that affirmatively indicates his innocence.

And we're arguing about whether that's so. Side note here, does anyone get the sense that maybe Justice Breyer did not take federal courts? It's a little concerning. Stop reading briefs. Well, I'm not sure. Last week, like, did you file a habeas petition? This week, Section 1983. It's starting to raise some concerns. Well, he's got a busy speaking schedule.

Do we think that's the problem? He's writing a book about how the federal courts aren't political. They just don't know anything about the federal courts. So, you know, when you put that together, I'm just going to say when I took federal courts way back in the day, Erwin Chemerinsky's horn book, Federal Jurisdiction was like lived with that, slept with it. It was the best. So Justice Breyer, we should send him a copy. I also want to know that Justice Breyer may also be a fan of musical theater and in particular, Les Mis because he had some very Jean Valjean moments. So here's one of them. So common law courts really did. I stole this bread to feed my starving children.

And the DA says, okay, okay, I understand. Unlike, et cetera, I won't prosecute you. You say, oh, good, wonderful. We now have a malicious prosecution claim. Right? No, I stole the bread. I mean, it's Jean Valjean. I stole it. And yeah, to feed my starving children. I'm just saying your view is, yep, there is a malicious prosecution claim. This is great. Well, I know four lawyers who will bring it and there we are. Okay. And he was obsessed with this because

he brought it up again and congratulated himself for doing so. If that normally happens that way, then what's this affirmative, uh, uh, affirmative, uh, indications of innocence doing there. After all, it seems as if almost all the states and everybody else in many of the states, they've gotten along for years without it. And it hasn't in my wonderful example of Jean Valjean just hasn't turned up once. What is going on? He's too busy with musical theater to learn about federal courts, right? That is his true passion now. And I just want to say, Justice Breyer, if you want to spend more time at the theater, there might be a way to arrange that.

I mean, I have to say, if you are going to spend more time at the theater, I don't know that Les Mis is where you need to be spending it. Is it just me? I'm not a big Les Mis fan. I like Les Mis. I've never seen it in the theater, actually. But I do. I do like it. I like the soundtrack a lot. No one would think I have good taste in music. So I'm just not sure my opinion is super relevant here. Do you like it or don't you? I'm ambivalent. Like, it's not one of my favorite, but it's not. I think you have great taste in music because that's exactly how I feel. Because wicked is the best. Wicked is the best. I don't think that. See, I knew you wouldn't agree. I have objectively bad taste. We think

you have excellent taste in music, but musical theater, maybe we will grant you that. We're not going to use you as the arbiter. So I can't leave this argument without briefly talking about our boy Sam, right? So Justice Alito used the seriatim questioning time to try to come up with other ways he should lose since Alito might be compelled to vote for Amir on the issue the court is actually supposed to be deciding in this case. Any predictions on what Justice Alito is going to write? This seems like Justice Alito is thinking about one of his classic concurrences, which is maybe we're saying the civil rights plaintiff or criminal defendant will win on this exact issue. But here are a million ways they should lose on remand. You know, hint, hint, nudge, nudge, court of appeals.

Like, that just seems like it's in the pipeline. Justice Kagan and Justice Sotomayor didn't question Amir until the Syriatum questioning. I took it from Justice Kagan's clips that we were playing earlier about like, look, this is not relevant to the question we granted and trying to correct Justice Gorsuch on this that she is already a little tired of these fools and it's not even November yet. So it's going to be a long year. We feel you, Justice Kagan. We have a self-care recommendation for you. We're going to send you some masks. Well, we need like a jumbo bottle of olive oil though.

A big bottle of olive oil and a mask. Not one of the masks, not like a COVID mask for going out, but like an actual sheet mask that you can also loan you strict scrutiny intern rege jean page who can like run some errands for you and help out around chambers you know just um if you're feeling overworked right just trying to be helpful here i'm not sure if like olive oil and richard jean stay in the final cut of this episode melanie you make the call i don't know why not back to the argument to the argument focus ladies amir argue that the court could resolve the case in three sentences two if you like semicolons i feel like that was throwing down the gauntlet for the Fifth Circuit.

We can do this short and fast. Per my last email. I love it. That's amazing. So let's move on to Cameron versus EMW Women's Surgical Center. So this is the abortion case we previewed on the last episode. It's an abortion case, but it's not really about abortion, at least at the heart of the issues in the case are not abortion specific issues. So the issue here is whether the Kentucky attorney general can intervene in a case after the court of appeals decides the case after the attorney general did not appeal the district court opinion in joining the law. After the district court dismissed the attorney general from the case, after the attorney general filed a stipulation agreeing to be bound by any judgment in the case. And in that same stipulation, arguing that the attorney general couldn't be sued because the attorney general lacked enforcement authority, all in order to intervene to raise an argument that a majority of the

Supreme Court rejected in June medical services, namely that abortion providers lack standing to challenge regulations on abortion providers. As we suggested, this court, in its eagerness to rule against abortion rights, was probably going to overlook basically any and all of the normal rules of civil procedure and the normal rules of litigation that would seem to suggest that the attorney general cannot intervene here. So these are rules of jurisdiction, rules of waiver, rules of who has standing. And basically, Justice Sotomayor pretty much summed it all up here. Why would we call it an abuse of discretion for a court of appeals after it's rendered its judgment to say, we don't really care what has happened in the political arena.

We don't want to be dragged into it. You agreed to be bound by this judgment. You didn't appeal, even though you were a party. Are you telling me you're now willing to waive the sovereign immunity of the State? Because that's what it sounds like. Because if you're coming in as yourself, you were here and left. You agreed to be bound by whatever the Secretary of State did. Under what theory of law would we be able to say that the Sixth Circuit abused its discretion in just respecting the very stipulation you signed. I just feel like part of the astonishment and horror that is coming through in this question is the fact that Justice Sotomayor is alone on the court and previously being a district court judge. So she knows how all of this works. And she's just kind of like, just me? Seriously? Really? Just me? Sorry, I'm doing law over here, boys and Amy, right? I don't

know what you're doing. Like in between, she's like, Elena, do you have an extra mask? I'm going to need a bath too. Send over Reggie Jean. Exactly. This is crazy. Justice Kagan also had this amazing point about the court's failure to appeal is jurisdictional cases. So here she is. I guess I'm not sure I understand the answer. So let me reframe the question a little bit. You know, take our decision in Torres, right, which is the case where we make clear that the notice of appeal requirement is jurisdictional and impose a very harsh rule saying that if you don't appeal, even if it's not your fault, you're out of luck. Okay? So do you think if Torres had gone further and Mr. Torres had filed a motion to intervene, that we would have said, oh, sure, go ahead and intervene in the suit. Would we have would the court have said that?

And I think the point is just like we have all of these prior cases saying the failure to appeal is jurisdictional. And now you're saying that a party can get around that just by filing a motion to intervene. Like that doesn't make any sense. The state tried to get around this obvious jurisdictional issue with this strange theory about the two hats that the attorney general wears. The idea was that no one in the litigation was representing the state, and only the attorney general had the authority to do that under the statute. What about the commissioner of the Department of Health, who was the original defendant here? Why wasn't that person Friedlander, Eric Friedlander? There are other state officials, right,

who are representing the state if only because, like they can only be named because they have enforcement authority of the state under the state law. And you add to that the fact that the attorney general asked to be dismissed from the case precisely because they argued they were being sued as the state and otherwise lacked enforcement authority. It's just insane. So can we roll back? Why does Daniel Cameron, Mitch McConnell protege, want to intervene so badly in this case that he's literally twisting

every rule of civil procedure to do so. I mean, abortion. Yes, exactly. It's an abortion case. And they know it's a new Supreme Court. And it's a different court than the one that rejected the standing argument in June Medical versus Russo. And so they want a second bite at the apple. Like they want a chance to get this argument before the Supreme Court again. And because this is, you know, not unlike SB8 in that it would be a devious way to prevent judicial review of abortion restrictions if you manage to get a majority of the Supreme Court to sign onto the proposition that providers can't do that. That's how most abortion litigation has been resolved in recent decades. And so, you know, and they think that they sort of see that

in view and would like to get up there and be heard before this court with that argument. Well, again, remember the whole discussion we've had about stuff that was off the wall suddenly being on the wall. Clarence Thomas has been making this argument about third party standing since his dissent in Whole Woman's Health, even before that. But he made it very forcefully in Whole Woman's Health versus Hellerstedt. And now it's like he's not alone anymore. Like they're seeding this everywhere and it's like throwing stuff at the wall and it's actually on the wall now. Yeah. And Justice Alito and Justice Gorsuch basically joined his theory in June Medical. And we will come back to this argument if the AG is actually allowed to raise it. Because speaking

of I'm just trying to do law, I don't know what you boys are doing over here. Like, this theory is just such a mockery, and so inconsistent with basic principles of standing. Like, what they are arguing is someone who would face criminal penalties and civil fines under a law can't sue to challenge it because they're not injured? Are you kidding me? Under what theory are they not injured? They are the object of regulation. The argument is that they're just representing their patients and their patients, right? They have no skin in this game at all. Right, exactly. Because being thrown out of business and thrown into jail doesn't give you an injury. I mean, come on. It's just anyways. Back to the two hats theory. Alexa Colby-Molinas, who was representing EMW Women's Surgical Center, addressed it, I thought, quite pointedly in her opening. So let's play that clip here. Because he was expressly bound by the judgment, he had a right to appeal, but he had to do so within the 30-day time frame set by statute.

He cannot now avoid his jurisdictional failure by seeking to intervene instead. The Attorney General does not directly dispute that one who is bound by judgment and fails to appeal cannot intervene. Instead, he offers two responses, both insufficient. First, he argues that he's exempt from jurisdictional rules because he is wearing a different hat on appeal than he wore when he agreed to be bound. But the attorney general was sued and bound in his official capacity. And the fact that a party has more than one job responsibility does not allow it to evade

a jurisdictional bar. Both of your hats are tragic fashion choices. They both suck. Get a new hat. I just like that just because you do wear two hats doesn't mean you can't do your job. Like, it was just, I just love it. We predicted this. She was fantastic.

She was absolutely fantastic. And are we not tempted just to, like, play her entire colloquy with the court? I mean, like she just everything was great. I listened to the argument, not live, but after the fact. And I have I don't think I've ever been moved before to listen to an argument a second time, not for any specific substantive legal point, but just because she was so good. I wanted to listen to it a second time. I love this song. Oh, I'm horrible. I will put a song on repeat, like and drive everyone insane. So I guess I do have that instinct. But it rarely rears its head in the context of, you know, Supreme Court arguments. But here it did. Yeah, she was really great. And it just it makes me a

little sad because her knowledge of the record, her knowledge of the law were so excellent. She so clearly has the better of the argument. And it's just not clear it's going to matter. Like, again, just speaking of like, are we even doing law here? It's yeah. And I have I got like the bad feeling from Justice Breyer in this argument that he was going to take this opportunity to like refine his nonpartisan bona fides by siding with the conservatives. Again, like just like he wasn't quite following. And she then was very gentle in breaking it down and explaining it to him. But and then he got kind of a little irascible with her about it.

Yeah. Yeah. I just I don't think she is likely to get his vote in that I found both troubling and potentially like a harbinger. I just feel like that we could be seeing a good amount of that from him this term. Can I ask about just sort of the long-term consequences of this? I mean, obviously one consequence, which Leah has mentioned is that they will have a second chance to relitigate this question of third party standing in abortion litigation, which would be huge. I think the second thing that no one's talked about is like the whole idea that a state official could subsequently intervene after some other state official has done something, but that deviates from what the new state official wants to do is potentially huge.

Like, could you imagine like a state legislature filing a slate of electors perhaps and then some new state officials saying, you know what, I don't like those. I'm going to come back. I want to reopen this. I want to intervene and I want to bring. I mean, it just feels like there's no end to how this goes. or attorney general has meant that so many policy disputes end up getting resolved in the federal courts because activist AGs run to the federal courts when the opposition party is in the White House to try to challenge every initiative. Like we are very much seeing that right now. And, you know, because there are some states where, like Kentucky, you know, statewide, there's sometimes a flip from red to blue, blue to red. Every time there's an intervening election, every litigation decision made by the predecessor officer

could all of a sudden be open to reconsideration. Yeah, chaos and just sort of further plunging these policy disputes into the federal court sort of more and more. It just seems like an incredibly dangerous road to go down. And yet there was all the sympathy like, well, of course, there was an election. He wanted to take another look. And Alexa was like, the law is really clear that the successors are bound. That's not even really a question, but the justice, I'm not sure, really cared.

No, and it will bog down all of this litigation with so many additional complexities and so much additional uncertainty. It will mean it will drag on for longer. And I think, again, as Melissa, you were saying, this is part of where Justice Sotomayor's horror as a former district judge came from. Like, you could potentially undo years of work that a district judge has done in litigation just because, you know, an official is like, you know, scrap everything we've said for the last two years. Y'all, I got a new hat. Check out my hat. So cute. Ridiculous. Anyway. Another case that was argued in the sitting is United States versus Tsarnaev. So this is the death penalty case involving Dzhokhar Tsarnaev, who was convicted for his role in the 2013 Boston Marathon bombings. The First Circuit here said that his death sentence was unlawful for two reasons. First, the fact that the trial judge did not ask

prospective jurors what media coverage they had seen or heard. And second, the fact that the trial judge did not allow Tsarnaev to introduce evidence that his brother was involved in a separate, unsolved triple murder two years before the bombing on the ground that this was mitigation evidence that supported his theory that his older brother had indoctrinated him and was more likely to have been the leader in the bombings. Our coverage here mostly focused on the first question thus far, but the argument actually took a turn and really focused on the second question with Justice Thomas and Justice Sotomayor asking about this first ground, but most of them questioning the whole second piece of whether the mitigating evidence should have been introduced.

So I think it's clear, as most people expected, that the six conservatives think that the death sentence should be reimposed. This is something reinstating death sentences that were overturned by Court of Appeals that they did repeatedly last year on the shadow docket. I also think it's likely that the three Democratic appointees will dissent. And the big talking point and theme among the conservatives was, well, admitting this evidence that is allowing Tsarnaev to introduce evidence that his brother was involved in a previous crime would distract from the main issues in the case, namely Tsarnaev's commission of this crime that he was charged with, and it would be a trial within a trial. I just think this objection completely misses the mark and

misunderstands death penalty litigation, which often include many trials at the mitigation stage, where you ask things about a person's life history, prior criminal history, and a bunch of other things that aren't just about the commission of the particular crime. And so that is just how mitigation stage and sentencing stage proceedings of capital litigation work. But they really seemed to object to that. Something about the case that has been in the background of coverage and came up during

argument is why the Biden administration is seeking to reinstate the death penalty sentence, even though President Biden promised not to carry out death sentences. So why are they seeking to reimpose a sentence that they will never try and carry out? Justice Barrett actually asked a question along these lines. So let's play that clip here. Mr. Fagan, I'm wondering what the government's end game is here. So the government has declared a moratorium on executions, but you're here defending his death sentences. And if you win, presumably that means that he is relegated to living under threat of a death sentence that the government doesn't plan to carry out. So I'm just having trouble following the point. So I know you're thinking this was an

Amy Trolley Barrett kind of moment, but it could also be, I mean, again, like she has written about Catholic judges, for example, needing to sort of take a stand about the death penalty because it is out of step with Catholic doctrine. So maybe that was part of it. I don't know that it was necessarily trolling. What do you think? I mean, I just don't know in what way it is legally relevant in the sense that like, there's no question that the government has standing right to appeal this judgment, which would constrain its behavior, you know, in future trials. So it's not like the fact that they don't intend to carry out this particular death sentence somehow deprives them of injury in the case. So it does feel to me a little bit like, well,

like you promised to do this. And now you're not questioned like a little bit of a gotcha in that way. Again, just because it's not clear to me like what the legal basis for the question is aside from optics. I actually was just sort of thinking like when she made a statement, I was like, oh, I wonder if this is like, you know, back to that paper she wrote. Yeah, no, no, I had that thought, too. But I also, to Leah's point, was like, no, I haven't revisited the briefs. Maybe it comes up in the briefs, but it's certainly not like legally relevant in any way. I could get my arms around. So it just seemed like, well, this like budding new textualist on the court like is able to look around and ask questions about the political context in which various litigation judgments like are made and events occur. And it's like, well, that wasn't like there's a federal death penalty statute and there's an Eighth Amendment.

And like those are the legal sources that are relevant in this case. She looked up the word and in the dictionary case just like she looked up the word so. And that told her to ask about whether this president intended to. About Biden's campaign promises. Exactly. Like what? Yeah. Exactly.

So it felt like a little bit of a, you know, kind of revealing moment in that sense. Just sort of like is he as good a Catholic as he says he is? That's what I thought it was. But isn't that itself a bit of a... You know me, I'm just like, I'm just here for the snark. Wherever it comes, I'm here for it. So maybe some additional evidence for my Justice Kagan has had enough of these fools, and it's only November theory, which is she jumped in to correct a premise of questioning

by Justice Kavanaugh during the seriatim format when each justice is supposed to be, you know, asking their own questions during a particular period. So let's play that clip here. Right. So that's the district court's theory. And then your answers to the line of question were, even assuming that Tamerlan did play the lead role, which we don't have evidence of, the district court concluded. Even assuming that, that still gets into the comparison game that you said the district court could conclude that's not the right role, the right analysis for the jury to take in a case like this. That's correct, Your Honor. I just want to make sure the premise, I mean, the premise was assumed away.

The premise was assumed away because that's the role of the jury. Well, I think it's important to discuss the district court's reasoning. And the district court said, we don't know what happened. And the district court, I mean, maybe to answer Justice Kagan's question, does the district court have a gatekeeping role here or not? And maybe that's Justice Alito's question, too. him. But this is something that used to happen during an unstructured time of argument where a justice would basically intervene to help answer a question when they were like, well, that question just isn't relevant. And there's an obvious answer. But here, it seemed like, oh, my gosh, like, do you not understand that what you're saying is wrong? And I just want to reiterate, I feel Justice Kagan's pain, like I empathize with her, like, you are hearing all of these dudes around you saying wrong things, and their views are

going to prevail. And there's nothing you can do about it. And yet you still feel the need to say, no, like, that's not the way things are. And it's just, you know, screaming into the void at an oral argument. One more thing to flag, which is related to Leah, the mini trial point that you made earlier, which is Alito brought out this kind of go-to persona, but that I feel like we haven't, I don't know, maybe we just haven't seen it that much from the bench in the short time that we have had this podcast. So we haven't actually identified or named it. But the basic persona is that it's a capital case, and Alito takes the argument in a direction that no one was pursuing, but that allows him to make the gratuitous point that the court's death penalty litigation rules coddle and overprotect capital defendants and are grossly

unfair to helpless prosecutors, right? So that is sort of to the mini trial point. But I guess I want to like just offer up a proposal for the persona, which is something like capitalito. What do we think about that? Is that too like lighthearted for capital? Death-lito? Yeah. I mean, it's really, I mean, he just like, oh, so, okay, so what happens? You introduce this kind of mitigating evidence and then like the poor prosecutors, what are they supposed to do in response? To your point, Leah, like that's, you know, penalty phases in capital cases. Like there's

mitigation evidence. Like, you know, the court has made clear the Eighth Amendment requires it, to which actually one point we haven't made yet and we should, which is that your co-clerk, Melissa Ginger Anders, former Strict Scrutiny podcast guest, was fantastic. Like she did a terrific, terrific job. Yeah, for sure. But Alita was just like, oh man, the poor prosecutors. So, so I just want to note that it's a persona that we haven't focused on sufficiently. Yeah. So a little court culture, some reporting from the Washington Post about an incoming law clerk for 11th circuit judge, William Pryor. He is the chief judge of the 11th circuit and one of the

judges on former President Trump's original SCOTUS shortlist. And he's also known as a theater judge because he regularly sends clerks to the Supreme Court. For example, Justice Thomas alone has hired 13 prior clerks, not prior clerks, but prior clerks. One of Judge Pryor's law clerks is Crystal Clanton of the Antonin Scalia Law School at George Mason. And she became known several years ago for, according to this reporting, racist remarks she made while working for the conservative youth group Turning Point USA. The New Yorker's Jane Mayer reported that Clanton wrote text messages that made a lot of statements about African-Americans, including, quote, I hate Black people, like F them all. I hate Blacks,

end of story, end quote. In an email to Mayer, Clanton wrote, I have no recollection of these messages. They do not reflect what I believe or who I am. And the same was true when I was a teenager. Clanton left Turning Point after Mayer's story and ended up working for, drum roll, Ginny Thomas, who she had met at Turning Point. And I'm told that Ginny Thomas has a spouse on the Supreme Court. A year later, the website Mediate reporting on Ginny Thomas hiring Clanton described a Snapchat message featuring a photo of a man who appears to be Arab American and a caption written by Clanton that reads, quote, just thinking about ways to do another 9-11, end quote. I don't even know where to start with this. I mean,

I believe in rehabilitation too, like people make mistakes when they're young, you know. But wow, this seems like kind of pattern and practice. And egregious. I mean, even if there weren't multiple instances, egregious enough that it should be disqualifying from a job, an important job in public life, like serving as a law clerk to a federal appeals court judge that sets you on a path to serving as a law clerk, potentially to a Supreme Court justice. Not even forget the path. The 11th Circuit, which includes Florida, Georgia. Alabama. Yeah, where lots of Black people live. And you just think about people making dumb mistakes that they can't come back from as kids, and people making dumb mistakes and then going

on to Supreme Court clerkships. Like, oh, okay. Cool, cool. Yeah. And obviously, I also don't think people should be associated with or held to the worst mistake they've ever made and also believe in rehabilitation. But the difficulty here is we just don't know if there's been an apology or acknowledgement. And that makes it difficult to say like there's been rehabilitation. Speaking of rehabilitation, I don't know if that's, this is just my attempt at a segue. I'm going to do the best I can here. Katie Couric has a new book out and it is called Going There. And boy, does she. In addition to the many stories that Katie tells about her time at the Today Show and CBS News, she also admits that in a 2016 interview with then Justice Ruth Bader

Ginsburg, she withheld RBG's harshest comments about kneeling during the national anthem. This was at the height of the Colin Kaepernick story about how Kaepernick kneeled during the national anthem. This was at the height of the Colin Kaepernick story about how Kaepernick kneeled during the national anthem in protest against police violence against Black people. Justice Ginsburg, according to Couric, said that people were, quote, showing contempt for a government that has made it possible for their parents and grandparents to live a decent life, which they probably could not have lived in the places they came from. As they became older, they realized that this was youthful folly, and that's why education is important, end quote. Cork did include RBG's remarks that refusing to stand was dumb and disrespectful, as Justice Ginsburg said, and noted that she later recanted her views about Kaepernick, but she really took

out a big part of the story and withheld a big part of the story. And I just sort of want to note this whole idea about contempt for a government that has made it possible for their parents and grandparents to live a decent life, which they probably could not have in the places that they came from. That's a kind of immigrant narrative that doesn't necessarily map on to the Black experience in the United States in ways that I think are important to note and would have been, I think, useful for people to call Justice Ginsburg on. So like a major blind spot here, like, yes, I think is very much a part of the immigrant story that for some African-Americans is definitely part of the picture,

but not for everyone. Not everyone immigrated here and left a life that wouldn't, where things wouldn't have been possible for them. Some people actually got forcibly removed from where they were. So yeah, I mean, I don't know what to say. According to Couric, the head of public affairs at the court emailed her the day after the interview to say that Justice Ginsburg had misspoken and had asked that this clip be removed from the story. And Couric says that David Brooks advised her that Justice Ginsburg probably didn't understand the question. But David Weston, the former head of ABC, advised Couric to keep it in. And Couric, because she wanted to protect RBG, thought the comments

were unworthy of an icon of equality and justice and made the decision to keep them out. I haven't read the excerpt from the book, but I have read, obviously, the reporting on it. And I mean, Couric looks pretty terrible here, I think, both having decided, I mean, of course, Ginsburg does as well, if in fact she understood the question. I don't think there's a charitable account of what she thought she was being asked. I remember when I read her comments, the edited ones that said dumb and disrespectful, being really pretty shocked and wondering whether she actually didn't understand what she was being asked. Like she hadn't been aware of athletes kneeling Kaepernick. And she just kind of like was caught off guard and offered an opinion on something she genuinely hadn't been following.

It had been opera singers kneeling during a performance. She would be all over it. It's like, yeah, yeah. No, and it's not like this was a football only story. This was a national story. But it didn't seem impossible to me that she was like, look, they're not used to feeling clueless. She was like, I literally have no idea what you're talking about. I'll say some words.

And that's actually what happened, which is why there was this like bizarre quality to her answer. And it still seems possible that that's what happened because the public information office, you know, maybe she went back to her clerks and was like, I got asked this question about athletes kneeling. And they were like, well, yeah, like, you know, people are protesting police brutality. And then she was like, oh, I didn't know that. And like, maybe let's try to get that out of the story. Again, this is a very charitable account, but it seems not inconceivable. But the point is, Kirk didn't seem to try to, at the time, follow up to figure this out. And she says she edited it for totally journalistically improper reasons to protect

this icon and now is telling the full story in order to sell books. Like, what? Like, it's just an awful sequence of events. A lot of people doing crazy things to sell books these days. I'm just going to say. Yeah, I think that is a very charitable take. Listen, I mean, this is, I don't mean to speak ill of the dead, but I mean, I said this before in our In Memoriam episode about Justice Ginsburg.

I think you have to take your icons as you find them. And I think she may have had feet of clay on this issue. I think you have to take your icons as, as you find them. And I think she may have had feet of clay on this issue. I think it was a real blind spot. Like if she didn't know about the protest, that was a blind spot. It was everywhere, like absolutely everywhere. And you know, I think you can talk about the fact that she had a single African-American clerk, now Ninth Circuit Judge Paul Watford, is a really glaring stain on her record. And that doesn't detract from other things she did that were amazing and memorable and fantastic. But I think you can just sort of say people live lives that are flawed and full and move on. And you don't need Katie Couric to sort of clean it up. I actually think it would

have been very useful given that she was sort of at the height of her notorious RBG powers in 2016 for there to be a public conversation about like, what are your views on race? Like, why have you risking, right, the appointment of a successor who will like dismantle voting rights for communities of color and like, you know, do this and that and, you know, so. Yes. Thanks, everyone, for listening. Thanks to Melody Rowell, our producer, who had to edit out a bunch of side conversations this episode. Note that is not journalistically improper.

And thanks to Eddie Cooper for making our music. Oh my god, I'm just thinking about Melody's tell-all now. Stuff she saved us from. And if you would like to support the show, sign up to become a GLOW subscriber at glow.fm forward slash strict

scrutiny so you can join our live shows and hear all of the things that Melody will edit out.