Strict Scrutiny - Sometimes, These F*ckers Lose

Episode Date: August 10, 2026

Melissa and Justice Correspondent for The Nation Elie Mystal sift through the results of last week’s primaries, including good news from Missouri and Kansas, with a detour on why Michigan Senate candidate Abdul El-Sayed needs to shape up on Court reform. Then, the latest installment of Todd Blanche’s confirmation process for Attorney General and the many misdeeds at the department he hopes to permanently lead: letting insurrectionists off the hook, the targeting of the Southern Poverty Law Center as well as a progressive judge who used to work there, and assaults on the fourth estate. Also: welcome to the resistance…Jeanine Pirro? And finally, a late-breaking update on the Trump administration's continuing war on birthright citizenship. Favorite things: Elie: Jouppi v. Alaska Melissa:Crash Into Me, Robinne Lee Follow us on Instagram, Threads, and BlueskyGet tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.comBuy Melissa’s book, The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern ReaderBuy Leah’s book, Lawless, now out in paperbackFollow us on Instagram, Threads, and BlueskyFor a transcript of an episode of Strict Scrutiny please email [e-mail]

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clarity, she said, I ask no favor for my sex. All I ask of our brethren is that they take their feet or fall next. Hello, and welcome back to strict scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Melissa Murray, and I will be your host for today. And I am delighted to be joined by a very special guest host, someone you can always count on to bring The chaos. That is right. Friend of the pod, Ellie Mistal, is here today. Welcome, Ellie. Thank you so much for having me. How has your summer been? It's been pretty great. We've been taking turns on the podcast, so we've all gotten a little bit of a break, but it means that I've kind of missed being with the ladies, miss talking to the audience, and definitely missed hanging out with you,

because I think the last time we hung out was at the live show in June, and it was pretty fun. Well, my lexicon has really improved by leaps and bound since then because my kids are off of camp. And I have learned that I am, I don't have enough aura to keep up with my kids. I'm too unk for sure. And I'm basically just cheeks when it comes to understanding what my kids are doing. So that's been a huge education for me. I understood aura. I know that you have to be aura farming all the time.

I know why you're an unk. I don't know what cheeks means. Too trash. Two trash. Two cheeks. Oh, my. These kids are savage. Yes. As I apparently also, I'm now too old. The real thing is that I can't beat them in Smash Brothers anymore. Like, I just can't. Like, trying my hardest, I cannot. And it is a problem. Well, I don't even know what that is. You said words. That just sounded like a word salad to me.

So, anyway. All right. Listeners, we have a great show for you today. First, Ellie and I will. break down the breaking news from this week and be prepared. There is a lot of news. And then, as always, we will wrap up by sharing our favorite things. But before we get into the show, we have some exciting news. If you are a lawyer who listens to strict scrutiny, and I know there are a lot of you, guess what? You can now get CLE credit for listening to the pod. What could be better? Something you already do can now satisfy your professional licensing requirements. I mean, Hello, what better option is there? We just launched our first CLE course. It is our SCOTUS term

recap episode that came out in the first week of July. And right now, it is approved for CLE credit in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon. And we will keep you updated as more states are added. So this is something new that we're trying. And if enough people sign up, we will hopefully add more episodes in the future. So let us know how you like it. head over to cricket.com forward slash strict underscore CLE to learn more and to buy the course. And once you've purchased, head over to our partners at Lawline, an accredited CLE provider who's responsible for CLE administration.

And you can access the episode there for course credit. So happy continuing education, folks. This is going to be great. Also, listeners, watch the space, meaning watch the strict scrutiny feed because we've got the first of our summer bonus series episodes coming out this Thursday. This is going to be the first of two episodes in a series that we're calling Know Your Rights. And we will have another separate bonus series that's out next month. So stay tuned. All kinds of great stuff for this summer. But the great stuff starts right now because we are going to start today's show. So Ellie, shall we begin? Let's do it. All right. Okay. So let's start off with some legal news. We should talk about the recent primary. So Tuesday was primary election day in a number of states. And those contests.

are going to shape the general election in November, which will determine control of both houses of Congress and whether the federal legislature will be a meaningful check on this president in the second half of his second term. But it's also important to recognize that the primaries were also evidence of the long tale of the court's 22 decision in Dobbs v. Jackson Women's Health Organization. That's the case that overruled Roe v. Wade and sent the abortion question back to the states. As we've discussed on this podcast before, in a number of states where direct democracy vehicles were available, the people actually did make their voices heard by enacting ballot measures that would secure reproductive freedom statewide in the wake of Dobbs. And despite Dobbs saying explicitly that the abortion question should be decided by the people, some folks took the whole prospect of actual democracy personally. So in the year since Dobbs, conservative forces have tried to limit the use of direct democracy as a means of advancing reproductive freedom and other progressive causes. But happily, sometimes these motherfuckers lose.

That's what happened on Tuesday night in Missouri. The Republican-controlled state legislature incest that Missourians had used ballot measures to pass Medicaid expansion to raise the minimum wage and to legalize marijuana and sports betting to require paid sick leave and to establish a right to a proclamation. tried to make it harder to enact citizen-sponsored amendments to the state's constitution. So we've seen this playbook before. We've talked about it before. Here, the Missouri state legislature specifically proposed a ballot measure that would have amended the state's constitution to change the threshold for actually enacting an amendment to the constitution. So this time, it would require a majority in each of the state's eight congressional districts rather than what had been required before, which was a simple majority statewide.

That would have been the highest threshold requirement in any of the 18 states that allow citizens' groups to place constitutional amendments on the ballot. And, weirdly, the higher threshold to enact a measure would not have applied to any measure that the legislature proposed. It would only apply to citizen proposed measures. So the ones proposed by the legislature would still only require a simple majority to pass. So, I mean, if this doesn't just completely see. smell of just rank gamesmanship. I don't know what does. I mean, it's almost like a legislature that is gerrymanned to ensure Republican control will actually try to control everything. I mean, am I missing something? No, that's what they wanted. But Missourians, the people in the show

meet state, decide to show the Republicans these votes by defeating the measure at the ballot box. That was a big loss for the Republicans in Missouri. They did. And a big win for democracy. Well, yeah, right? I mean, like, that part is crazy. I mean, like, the state legislature in Missouri was literally trying to shit on democracy. And happily, the people in Missouri said, fuck that. Not far away in Kansas, there was another election night win. So listeners, you will recall that in 2019, the Kansas Supreme Court decided a case that established a right to abortion under the Kansas Constitution. And as a result of that ruling, Kansas is literally the last bastion.

of reproductive care in the Midwest, which has become basically an abortion desert. And predictably, the Republican-controlled legislature in Kansas took that personally. So they have been trying to overturn this 2019 decision for years, including proposing in August 2022 a ballot initiative that would have amended the state constitution to foreclose the right to abortion recognized in that 2019 case. Famously, Kansasans just months after Dobbs headed to the poll. and defeated the ballot measure. This time, the Kansas legislature had yet another attempt to try and unwind the 2019 decision. This involved a ballot measure that would have required state Supreme Court justices to be popularly elected rather than appointed by the governor.

And once again, Kansans did not disappoint. They flooded the polls and they crushed that amendment the way that Cash Patel crushes beer cans. against his head. Allegedly. Allegedly. That is what I've heard. So, yeah, like, great news. We talked about this a lot before the primaries. We talked about it on this podcast. I'm so glad that the people came out and just said enough of this nonsense. The biggest primary news on the left was the big progressive win in Michigan. Abdul al-Said, a progressive doctor, won the primary for Senate. And That has had progressives. That has had people on the left, you know, singing kumbaya and linking hands. And I'm I'm not there yet, folks, because once again, we have a person running for Senate on the Democratic side who seems to not understand the importance of court reform. So for all of these progressive policies that this man wants to follow, let's look at what he actually says about court reform, right? He says that he supports a 10-year term limit, which, okay, we get it.

term limits are super popular. You need a cut. But we get why people are all in favor of term limits. But why is it 10 years? Put a pin in that thought, right? Then he also supports some kind of bat guano Pete Buttigieg. Each president can make a set number of appointments or, or, apparently, nominate the person who is about to get out on a 10-year term limit for another 10 years.

So that would be 20 years. So what's the point of your term limits if you can just renominate these people? What? If they do a good job, that's what we want. Oh, make sure that you vote the way I want you to vote, Justice, who is almost up for your term limit, or else you're going to be out of a job in three months, or you can be out of a job in another 10 years. Like, how does that even make sense? And the thing is, Melissa, like, look, this man's a doctor, all right?

He passed or go, I couldn't. Like, he has a different set of skills. But his approach to court reform reeks of a person who has not talked to the experts about it and is instead just out here talking out of his ass. It's like if I was trying to diagnose my tumor by going a webmd and chat GPT, right? And Abdul al-Said, if I try to do that, I'd be like, that's not the way you diagnose a tumor, son. Well, let me tell you, this is not the way that you diagnose the tumor that is the Supreme Court right now. And I just don't understand how even progressive, allegedly progressive Democrats can't get the memo on this. So I think this is such an important conversation to have.

I mean, it was an enormous win in Michigan. You know, some people said that, you know, he didn't win by as much as I thought he would give in the polling. But so I think it's a really important win. It says a lot about where people are and they're doing. dissatisfaction with the status quo. This court is the status quo. And if you're going to be a progressive candidate, you've got to talk about this. You can't talk about Medicaid for all and not reckon with the fact that once a Medicaid for all bill is passed. And, you know, once that happens, it's going to go to the Supreme Court where these people are going to strike it down. I mean, like, you have to have

a really considered plan. And it has to be, again, as you say, like, term limits is just the tip of the iceberg here. Like, let's really have a more meaningful conversation about what it would require to make the court less of an impediment to actual democracy. It's the first step. People always want to treat court reform as if it's the last step. But it's actually the first step because if you don't reform the Supreme Court, as you just pointed out, Melissa, all of your other plans get punted into the sun by Neil Gorsuch, right? Medicaid for All? Are you kidding me? Did you not see what they basically did to Obamacare, they will have a fight on the right to see who gets to write the opinion punting Medicaid for All into the sun. So you fix the court or you get nothing.

And that's what even the most progressive, the most lefty, the most, I'm a democratic socialist not people. They don't get it. You can't have your democratic socialist utopia unless you have Supreme Court reform. All right. So can you just pause and come. contemplate for a moment that a graduate of Yale Law School and a graduate of Harvard Law School are more to the left of the Democratic Socialist of America. It's insane. It's insane. Where the institutional is here?

Anyway. I worked on Wall Street. Amen. What the hell is wrong with you, people? Amen. And the other thing, too, that's so wild about it is that it's not like court reform or even just broaching the topic of court reform. in a thicker way is unpopular right now. People actually want to hear you talking about it. So I don't know. But they want to, but they need a real plan. Like the 10 year, you know, 10 year term

limits, that is something that he pulled out of his ass. Because if you really dig into the number, the reason why is usually the number people talk about. And the reason why is because that's how you make the math work. If you want each president to have two appointments per term, then and nine justices, then you need 18-year terms. So when he says 10 years, that already tells me that you haven't done the math even on it. You've just pulled a number out of your ass that you think sounds nice and sounds palatable without actually digging in to why the numbers work the way they work. So here's the good news. A couple months until November, there's time to get a better plan and to get a better position on court reform. And I hope that he and the other candidates who

prevailed in these primaries will do so. Let me know if he calls you, right? Because, again, if you're, if you are, he should be calling experts. Let me know if he calls you. Let me know if he calls Leah. He's from freaking Michigan. He's from freaking Michigan. Call Leah. She's right there.

She can explain it to it. Right? So let me know when you guys get the call. All right. So like, this is not too. It was good news on primary night. Great news in Missouri. Great news in Kansas.

But listeners can all be good news on this podcast. So let's now. pivot to a standard diet of Article 2 shenanigans. So first up, listeners, you all know that one of Donald J. Trump's first acts as president the second time was to provide clemency to the individuals charged with and convicted of crimes relating to the January 6th insurrection on the Capitol. In response to that action, the Department of Justice, or I guess the Department of Injustice, has taken steps to have those charges against the insurrectionist dismissed. Earlier in July, Judge Timothy Kelly in a very tortured written order, dismissed charges against some members of the proud boys.

I say the order was tortured because Judge Kelly was definitely going through it when he dismissed the charges. So in the order, he conceded that his hands were tied and that the president's views of the Capitol riot, whether based in, quote, fact or fiction, were well known. He then concluded the order by noting that, quote, If this nation's experiment in self-government is to last another 250 years, the American people, no matter their partisan preferences, will have to act together to preserve, protect, and defend that miracle through our constitutional framework. And just so we're clear, Judge Kelly is no liberal squish, all right? He is a Trump appointee who previously served as the Chief Counsel for National Security and the senior crime counsel to the U.S. Senate Judiciary Committee Chairman Chuck Grassaby.

I mean, that part to me as well. I mean, when people talk about, like, Judge Kelly, a Trump nominee, I imagine he was probably in the Federalist Society before taking the bench. Like, he's hand-wringing about this. I think, I mean, like, he's hand-wringing about this. This was hard for him. And, you know, he was not alone in holding his nose and dismissing these charges against known insurrectionists. So last week, Judge Emmett Mehta, Kelly's colleague on the District of the District of Columbia Bench, again at the request of the Department of Justice, dismissed charges against members of the oathkeepers, including the leader of the oathkeepers E. Stewart wrote. So like Kelly, Judge Mehta seemed pained to issue this order. The first three pages of the order are devoted to recounting in very careful detail the crimes for which the defendants were convicted. And even, Even as the order concedes the primacy of the executive branch in criminal prosecutions, it concludes with an admonition of the prosecutors seeking the dismissal, noting, quote, if it is the prosecutor's view that the public interest is served by surrendering convictions for crimes against the country to the gloss of an enduring public record, then that is an assessment to which this court must yield. Yauza. I mean, like, that's pretty firm if you're a judge, right?

I mean, and sad. Like, I mean, he's, he's, he's, he's, he can almost hear the sad trombone as he's, as he's writing that, right? This episode is sponsored by BetterHelp. You've heard me talk about BetterHelp for a long time, but I don't know that we've ever actually talked about how much people love this service when they use it. You can check it out yourself at BetterHelp.com slash reviews to see amazing customer reviews in real time.

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from Florida. Let's go to Florida. Let's go to Florida. The Department of Justice's campaign to tamp down the centers has included retribution against the president's enemies as well as organizations that are concerned with the issues that do not align with the administration's preferred agenda. You know, like advancing racial justice and identifying white supremacists. That's likely why the Southern Poverty Law Center has found itself in the DOJ's crosshairs. In April, the Department of Justice sought and secured an 11-count federal grand jury indictment against the SPLC on grounds of the organization has been engaged in fraud. There's been a lot of coverage of the impact of the indictment.

Obviously, it has made the SPLC very visible and not in a good way. It's likely deterred contributions to the organizations, donations, donations, partnerships with other organizations for their work. And to be very clear, the SPLC's work has been to advance racial justice in the South and to oppose violent extremism by doing, among other things, naming hate groups that are committed to among other things, white supremacy. So, like, this has been bad for the SPLC, but it's going to get worse, I think. Yes, because the blast radius of this prosecution just keeps expanding.

Last Monday, Florida AG James Ubermensch, I'm sorry, that's not his name, James Ulfmeyer, demanded that Congress initiate an impeachment inquiry into the 11th Circuit Judge Nancy Aboodoo, citing her prior work for the SPLC and the ongoing prosecution of the organization. So again, they're citing the fact that she used to work for a place as a reason to impeach her from her current job. For additional context in 2023, Abu Dhu became the first black woman, like I needed to tell you, to serve on the 11th Circuit, which hears appeals from Florida, Georgia, and Alabama with its sizable black populations. Prior to her judicial appointment, Abuu served as the SPLC's director for strategic, litigation, which, according to Uthmire, means that she was all in on the SPLC's alleged fraudulent

conduct. So I want to be really clear about this. It's not obvious that Uthmiers' demands will necessarily result in an impeachment inquiry. So Congress actually has to decide to take up this inquiry and investigate it, which is why the midterms continue to be really important. Securing control of Congress will not only allow for oversight of this. lawless administration. It would also, I think, help prevent the reckless and continued effort to smear and ruin the careers of black people in all facets of employment. But I think we have to be really clear about what this is intended to do. One, the indictment against the SPLC is supposed to scare other progressive organizations out of doing the work that they do, which is often suing the government,

holding the allies of this government accountable for what they do, sometimes just naming. the allies of this government as allies. And more importantly, I think this is intended to send a message to progressive lawyers about how they spend their time and whether or not, you know, they would like to seek judicial appointments in the future. I mean, it's basically meant to have a chilling effect on this kind of progressive lawyering, full stop. Especially if they black, right? Especially if they black. Like you're correct. Right? Like, this does not happen. to judge Nancy James, all right?

That's not, that's not, you know, Judge Nancy McTierney does not have this happen to. Yeah. Yeah. So I think one way to sort of think about it is about just this, the use of DOJ resources to limit and control efforts to critique, to dissent against the administration's policy, the policies of its allies. It's also, I think, you know, part and parcel of this campaign against people of color in positions of authority that we've also seen this administration engage in. Which brings me to another facet of this administration.

You know, Ellie, I will admit it. I was one of the sweet summer children who thought that Todd Blanche's confirmation process would be a knock-down, drag-out fight. Because why wouldn't it, right? This is a man who served as Donald Trump's personal defense counsel in a case that resulted in the future, former, whatever president being convicted 34 times by a New York City jury. Todd Blanche is the man who, quote, unquote, interviewed Galane Maxwell in prison and then had very little to say about why the convicted sex offender was subsequently relocated to a minimum security facility. Todd Blanche was the man who so bungled the release of the Epstein files that survivors were compelled to protest his nomination and confirmation process. He is the man who, at the president's request, agreed to settle a case that the president as a private citizen brought against the IRS, a federal agency that the president as a president overseas. And that's not even all. He's the man who is part of that settlement agreed to establish a quote-unquote anti-weaponization fund that would disperse taxpayer money to james.

January 6, insurrectionists, among others, and agreed to give the president, his failed sons, and his company tax immunity. So I would think that all of those things in the aggregate would make Todd Blanche the third rail, like genuinely unconfirmable. But what do I know? Is he, though? Is he genuinely unconverable by these pathetic bootlicking Republican senators? Really? Because, look. I thought this guy was like, there's no way. I was like, there's no way this guy is getting through. Like, what am I smoking?

Why am I not vaping? Because you were thinking that he was Matt Gates. And the thing about Matt Gates that makes him different than most of these other Republican sugar pants. Is that Matt Gates is a frat paddle turned into a real life boy? Is that he gave up? Matt Gates gave up. Matt Gates decided he didn't want that smoke. But if you want that smoke, if you're willing to stand there and be humiliated for long enough in the name of Trump, eventually you'll win.

And stamina and staying power, Todd Blanche's willingness to sit up there and be humiliated for days is all it took for him to eventually get confirmed. Well, I think it took a little bit more. It did take outwitting Tom Tillis and John Cornyn, which I have to say probably didn't take a little bit. a lot of work. I have to outwit like, you know, a bail of cabbage to do that, right? Here's how it went down. Listeners, as you know, Donald Trump basically ended Tillis and Cornyn's political careers when he backed their primary challengers, right?

And so for a while, Tillis and Cornyn seemed like they were in full DGAF mode, right? When it came to the president, they were in YOLO mode. They were like full-on Virgoes, vengeful. Like, they looked like they were going to bring the noise. And I was here for it. Right. And in fact, Tillison Cornyn gave Todd Blanche the business during the confirmation process, right? Take a listen to Cornyn pressing Blanche on whether the weaponization fund is really dead.

I believe you have said that the weaponization fund is a moot issue. Is that your position? Yes. It is a moot issue, meaning there is no weaponization fund. The Webposition Fund is dead. It's not moving forward. Well, I would refer you to the settlement agreement. Do you have a copy of that in front of you?

I do not. Okay, well, you probably know what's in it. I'm familiar with it, yes. I'm sure you are. On page four, this settlement agreement may be modified only upon the written agreement of the parties. Has there been a written agreement of the parties to modify the settlement fund? No, the settlement fund's just not moving forward. There's no modification.

It's just never started. No money went from the treasury to any other account. There's no commissioners. It's not moving forward. Well, so the settlement agreement remains as it was originally, but I hear what you're saying. Is a settlement agreement enforceable as a contract by the parties? Well, yes, it's an enforceable document.

So I suppose if President Trump's counsel sought to enforce it, they potentially could. Including the weaponization fund. Well, they could try to enforce the contract. They can't force the Department of Justice to move forward with the weaponization fund. They could potentially say that, I suppose, that we breached by not moving forward. They haven't done that. And I'm not aware that they're planning on doing that. All right.

Let me just, like, break this down. John Cornyn is a lawyer, right? He's a lawyer twice over. He has a JD from St. Mary's School of Law, and he has an LLM from the University of Virginia, Wahoo Wah. He knows that Todd Blanche can't do shit around this settlement agreement, that he cannot unilaterally stop this settlement agreement. Like he's talking about, is the settlement an enforceable contract? If it is an enforceable contract, then the parties to the contract are the ones that have to agree not to do it. and that's Donald Trump, his failed sons and the Trump organizations. He knows that Todd Blanche cannot independently just address this and kill the fund dead. This is a man who is not just a U.S. Senator.

He is a former justice of the Texas Supreme Court. He knows the law. And that whole colloquy with Todd Blanche made clear that he knew that Todd Blanche could not unilaterally kill this fund. And yet. He was using it to put his foot up. Blanche his ass, right? Like he wanted to bring that out into the public just how dirty this man was. But I think it also shows, Melissa, something that Republicans only seem to get when they're out of office or when they're almost out of office, that they don't trust the administration as far as they can throw them. Which they shouldn't. Which they shouldn't. But they only remember that when they're halfway out the door.

All right, so I'm just going to say in this moment, it seemed very clear that John Cornyn knew the score. He was up Todd Blanche's ass and he was not going to go quietly into this. And that was meaningful for Todd Blanche because with the Senate so closely divided, Blanche needs the whole Republican caucus to back him in order to have a chance at confirmation on the Senate floor. So he needs Tillis and Cornyn to sign off just to get out of the committee and then get to the Senate floor. So he's got to figure out a way to. mollify the concerns that Tillis and Cornyn have. And as you say, Todd Glantch doesn't mind being humiliated. He doesn't mind auditioning. And he doesn't mind saying what he has to say. But I think what he didn't count on was that Tillis and Cornyn would literally fold like folding chairs on an Alabama riverboat dock. Right. That's a deep cut. It's a deep cut in honor of August 5th. Not everyone will get it, but I'm glad you did. But the ones you did got a nice Easter egg there. Yeah.

So yeah. So you're exactly right. But they did false. No, I mean, like, right. He wasn't counting on them folding. So the heart wants what it wants. And Todd Blanche's heart really wanted to be attorney general for real for real. And so he decided, I guess, to give Tillis and Cornyn what they said they wanted or did he, right?

So early last week, Todd Blanche released two statements. The first, which was a memorandum that Todd Blanche signed, said that the anti-weaponization fund would be rescinded immediately. The second statement, which was unsigned and released by the Department of Justice, clarified that the terms of the tax immunity for the president, his fail sons and his companies would be retrospective, as opposed to retrospective and prospective, which was originally the concern. So that's an important limit, but all of this is still a significant stop to the president. It also doesn't address the concerns. that John Cornyn was airing in that colloquy that Todd Blanche really doesn't have the authority to do anything, right? That you need the parties to agree to this and they won't. And you know who does have the authority? That's President Donald Trump. And it wasn't clear that Blanche had actually asked his daddy, Donald Trump, and run any of this up the flagpole. Here's the president fielding questions about Todd's assurances and the modifications to the settlement terms. So did you sign off on Todd Blanche?

I didn't look at it. All I know is that Todd Blanche is great. He's going to do a great job. Everybody knows it. And I understand there's been a sign-off. But I didn't know what they agreed. I think Todd Blanche agreed to reconfirm things that he's already said. And what he said was, okay.

All right. All right. So this is amazing. He has no idea. And, like, ostensibly, he wouldn't have signed off if Todd Blanche had actually done anything to really kill the fund. And he has no idea what's going on. It's like Todd Blanche is basically talking out of his ass. And everyone knows it.

Immediately reporters, many of whom do not even have law degrees, begin pointing out that there are numerous loopholes in the two statements. Some noted that even before the anti-weaponization fund was a glimmer in the president's eye, the DOJ had already begun dispersing taxpayer funds to convicted anti-abortion protesters, Trump campaign allies. others and that the Department of Justice could continue to negotiate those kinds of taxpayer-funded settlements even if there wasn't an anti-weaponization fund. So killing the fund probably wouldn't matter. And it was also clear that the statements that Todd Blanche was making were not necessarily legally binding. The settlement terms were negotiated between the IRS, the president as a private citizen, his fail sons, and his company. This was the point of the colloquy with John Cornyn. None of this made any sense that Todd Blanche by himself could modify, the settlement without the agreements of the parties. And then there's a whole thing that the quote unquote settlement proceeded from an actual lawsuit that may not have been able to be in federal court in the first instance, given that the president was on both sides of the V. So there's still

these open questions about whether the effort to settle this case constituted a fraud on the court itself. And yet. Yes. But again, all you had to do was out. outwit ahead of lettuce, right? Because despite those very serious questions, Blanche's assurances seem to mollify Tillis and Cornyn, both of whom happily cast their votes to advance Blanche's nomination to the full Senate for confirmation. In case you were wondering, the vote was a party-line vote, very close, because the Senate is closely divided, but it was 12 to 10. Here's Senator Cornyn commenting on his cowardice, I mean on the situation. saying as recently as yesterday. He likes the idea of this fund that he wants to find some way to

pay these people. Does that concern you as someone who's tried to fight against getting this anti-weaponization fund in place? Well, there's nothing we could do to reign in the president when he said he likes the fund and he wishes still exists, but the fact of the matter it's dead. And that's all we could do under these circumstances. All right. Wrong. Wrong. Wrong. What, go. I'm sorry. I'm sorry. All right. We're talking about. Cornyn is the guy in Pulp Fiction who says, I'm not a hero. I'm just a coffee shop manager.

Like, he's, he's that guy. He's just a coffee shop manager. He is not a hero. He does not have a spine. He is a coward. And he showed us all right there. Again, I come back to, like, John Cornyn knows that these statements that Todd Blanche has made to mollify him and Tom Tillis are basically meaningless.

He knows this. He still voted anyway. He also knows that one way that they all could have made sure that this fund was dead was for Congress to pass legislation killing the fund. Right? Yep. Yep. They all know that. They all know that.

So this whole idea, like, there's nothing we can do to rein in this president. Article 1 would like a word. What, like, what are we talking about? Like, the whole idea of separation of powers would like a word. It's just, it's just so gross. But here's the thing, listen. So we have to stop thinking that Republicans will ever grow a spine and stand up to this president, right? Even the ones that the president has humiliated, even the ones that the president has kicked out of his inner circle, even the ones, as in the case of Tillison Cornyn, the president has literally taken their jobs away.

They'll never grow a spine. If they had a spine, if they had a conscience, if they had decency, they wouldn't be Republicans in the first place. You don't become a Republican because you have decency. You don't become a Republican because you have a spine, because you have commitment to the people. You become a Republican because you are a spineless coward who lives to lick boots. And that's who Cornyn is. And that's who Tom Tillis is. And that is who they will always be, regardless of what this particular president does to them.

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off select frames plus free shipping with code strict. That's a uraframes.com promo code strict. And you can support the show by mentioning us at checkout. Terms and conditions apply. All right. So that's not even all to say about the prospect of Todd Blanche going from auditioning attorney general to attorney general for real for real. Politico broke a story about a conference call that Todd Blanche participated in. In this conference call, Blanche, it is reported, promised anti-abortion activist who were part of the group of faith leaders on this telephone conference call. He promised them that he would make Dobbs permanent in every state. What does that even mean? Given that, as we have discussed, Dobbs is supposed to allow political processes, democracy, the people, to decide whether to make

abortion available in their states. And why does Todd Blanche seem to think that he has the authority, given Dobbs and the fact that Dobbs committed this question to the people and the states, why does Todd Blanche think he has the authority to do anything here? How would he do this? Well, listeners, luckily, Melissa and I speak Republican. And the reason why Blanche thinks that he can do this is because he's probably envisioning one of two possibilities, all right?

One of the things is that he alluded to revisiting the FDA and HHS's regulations on Mitha Pristone, right? Something that he said he's in the process of doing, right? And we know that there are cases and issues and attacks on the abortion pill that have been ongoing since the moment Dobbs dropped, right? So that's one way to significantly restrict access to abortion. The second is that he said he was also looking into your favorite law, whether medical abortion, can be distributed via the mail, which is a reference to the Comstock Act, which has still not been repealed despite it being a 19th century law. Right. So the Comstock Act was passed in 1873. It remains on the books like a zombie

law. There have been tons of people who have sort of floated the idea that the Comstock Act could be used to prohibit the distribution of medication abortion through the males, including Justice Thomas in a number of separate writings. He has made mention of this. This seems to be a real bugaboo with Republicans. They talk about it in Project 2025. All that would be required here is a Department of Justice willing to enforce the Comstock Act in this way. You don't need a new Congress to pass a ban. You don't need anything. You just need a willing DOJ. And it seems that Todd Blanche has stepped up. We should also note that this phone call, is supposedly off the record, but one of the groups who participated posted a recording to their YouTube website. So some geniuses. I love it when Pete Hegseth is handling your comms. Like, that's good stuff. But it shows their hubris, right?

That's what you do when you're winning. That's what you do when you're winning and you don't think anybody can stop you. I mean, well, there we are. Speaking of winning and thinking no one can stop you, it's time to talk about our favorite. U.S. Attorney slash Box of Franzia. While I'm apologizing to all of you about my naivete over Todd Blanche's AG prospects, let the record reflect that I was today years old when I realized that Janine Piro might actually be the moral compass of this administration.

We called her a box of wine. She said, no, bitches. I'm a box of spine. Here's how it went down. I'm sorry. Go on. Go on. Sorry, it's my ball. I don't like, I like, you. No, bitches.

No, bitches. Oh, God. All right. Here's how it went down. Listeners, as we discussed on our live NYC show back in June, the Department of the Interior never solicited competitive bids on the Reflecting Pool Reservicing Project. Instead, the job went to a Trump donor and a Mar-a-Lago neighbor. What could go wrong? Algae? B? What could happen? Apparently a lot. The pool's new surface immediately began peeling and rather than admit that maybe this had something to do with the resurfacing and those in charge of it, the president and his pals insisted that the peeling was the work of vandalizing thugs.

And the U.S. Attorney for the District of the District of Columbia, Janine Piro, secured an indebted. against former Olympian David Hearn on charges of vandalizing federal property. So basically, Hearn was captured on camera, putting his hand in the pool. And there it was. And then all of a sudden he catches a federal case. Hearn, who was represented by, among others, friend of the pod, Norm Eisen, immediately hit back, providing photographic evidence that the pool had been peeling before and after. He stopped and put his hand in the water. I mean, real, you know, detective work going on here. It's just insane.

Hard-hitting forensic evidence. And it seems like that kind of detail was enough to get U.S. Attorney Piro to reconsider whether this was a fight she wanted to have an open court before a federal judge that she would likely have to be before again. And again. And again. So Piro, late on a Friday evening, when all the hot mess news is released, announced that she would be dropping the charges against her. Okay, so to be fair, this is exactly the right outcome. But does Janine Piro, as she is becoming a box of spine, know who she works for? Because her daddy, the president, was not having it at all. Take a listen.

Instead of going after the people that did it, the judge went out. after her and went after her department. And I guess she choked. I was disappointed with Jeanette Pirore. Really disappointed with Jeanine Pirore. She folded like an umbrella. Such a missed opportunity to use the August 5th folding chair as a metaphor and to reach black audiences. I mean, truly.

Folded like an umbrella. Does an umbrella fold? I mean, it just collapses, I think. You have to finish the analogy. They fold it like an umbrella in the wind, right? Like, yeah, yeah. Like, umbrellas don't fold on their own. They have, there's a force there that has, whereas a chair can just fall over or if too

many white people try to gang up on a boat captain. That's, that's, that's what can happen to chairs. Right. I'm told. I'm told. Legally. Right. So Janine Pirro collapsed like an umbrella in the wind and Kel Suprise.

There were reports that the president. was considering firing her. Shocking, I know. Ellie, what do you make of this? Is Piro just over this whole job? She was such a Trump loyalist for so long. Why is she now finding religion? And is she actually going to get fired?

Honestly, Melissa, this is the most shocking that's happened this week. When you brought this up to me, I would not believe that this actually happened. Like, listeners, I texted Ellie. We're going to have to talk about the Janine Piro thing. And Ellie wrote back, did she die? I was like, what? Like, where are you in? It was easily more likely that she just keeled over than that she actually did the right thing legally.

Like, that is shocking. And so because I am so surprised, I am forced to pull out my tinfoil hat and really imagine what other things can be going on here. Look, my antenna are raised. The only thing that I can think is that. that she found something real about the reflecting pool. Like, there's a deep, dark secret at the bottom of the reflecting pool. Like, the reflecting pool is the portal, the Epstein Island or something. Some issue where she knew that if she pushed it in court, things would come out.

Information would be revealed that, like, can't be revealed. It's disclosure day or something. I can only imagine that there's something way more, sinister going on, that she did not want people to find out because the idea that she just independently decided that this was a dog shit case that shouldn't be taken. Like, that's not something I see Republicans do. So it's hard for me to accept that it's hard for me to Occam's razor it, right? Just accept that the most obvious answer, dog shit case don't bring it, was the answer she

arrived to independently and of her own free will. So again, maybe I am horribly naive. Maybe I'm Kate Shaw. I don't know. But I genuinely just thought she's the U.S. attorney. Like, D.C. is a small legal community. She's got to come before these judges all the time. She can't be trying to convict an Olympian of vandalizing the Reflecting Pool when everybody knows. Like, the reflecting pool is hot buttered garbage right now. Like this resurfacing was hot buttered garbage and everyone knows it. That's what I thought. But again, I also love this hell portal to Epstein Island theory could also be the case. Yeah. To put joking aside for a second, at some level, this is all you want from the Department of Justice. This is all you want. This is all we wanted from Tom Tillis and John Cornyn. Like, just like grow a pair. Apparently, Janine has all of them. Right. Just follow the law. That's all people need. Just do the right legal thing. you're working for Trump. He's going to win most of the time when he has a case.

He's going to lose most of the time when he doesn't have a case. Just play it straight. That's all anybody's ever asked and that Janine Piro in this one instance may have done that. It shouldn't be so shocking, but it is. I will watch the space to see if our newfound box of spine continues to be the U.S. attorney for the district of the District of Columbia. In other news, while the president continues to fight a non-existent battle against the vandalism of public sites, his Department of Justice continues the administration's assault on the free press. last week in the wake of the Department of Justice withdrawing subpoenas directed to three New York Times journalists,

it was revealed that in February the Justice Department issued a subpoena to a Times freelancer in order to compel that journalist to reveal confidential sources and conversations that underlay a story about a failed top secret mission in North Korea. Now, just to emphasize, it is not unusual for the government to issue subpoenas to elicit information from media outlets, but typically, government investigations of leaks will initially focus on the government agency where the leak likely occurred. After that initial attempt at cleaning your own house, then the government may choose to subpoena the media, and they usually direct the subpoena to the media organization, not to the individual journalists responsible for the story. I'm saying all of this to emphasize that issuing subpoenas directly to journalists and then going to their homes to deliver, said subpoenas, is a bit agro, right? It's almost like the goal isn't actually...

It's way harsh time. Wow, Dion. Wow. Ellie, it almost feels like the goal isn't actually to get information about leaks or how the media actually came about this information about the failed North Korea mission. It seems like the goal is scaring the shit

out of individual journalists and their families and the hopes that that fear will deter the journalists from accurately reporting what the administration is doing and how clumsily they are doing this. Again, this was about a failed mission in North Korea. It's so weird because in a world where Bari Weiss exists, like the idea that you still have to pressure like the one or two journalists left that aren't licking your boots every day. It's just like, y'all have already won. Why do you have to go after, you know, the one or two people who are still doing actual journalism, right?

But that's what they're doing. I also want to note that while the Times is providing the freelancer with a legal defense, not every news outlets has the considerable resources of the New York Times or the Wall Street Journal or the Jeff Bezos posts or other, you know, other big legacy outlets. Smaller news outlets will not be able to defend themselves or their people, which means that they will be forced to be more and more cautious. their coverage of the administration for fear of catching a lawsuit. And this is a strategy that we know works. I always want to remind people about what happened to Gawker, right? If you look at what happened to Gawker, if you look at how Peter Thiel destroyed Gawker,

it wasn't through the big Hulk-Hulgin lawsuit. Like that was the proximate cause. The ultimate cause was the threat of the lawsuit, the constant threat. We're going to see you for this. We're going to see you for that. Remember, when Peter Thiel forces Terry Beola, Hulk Hogan, to bring that lawsuit, they don't think they're going to win. The goal wasn't to win the lawsuit. The goal was to drain Gawker of resources fighting the lawsuit.

And that is the real threat to every non-legacy organization out there. It's not winning or losing the lawsuit. It's the threat of the lawsuit. I used to work for the blog above the law, which is really great if you haven't read it. and still operating and it's awesome. But at one point when I was there, my boss says to me, you know, going over one of my stories or whatever, Ellie, we can't get sued. Ellie, we just, we can't get sued.

And I was like, boss, I can't promise you that, right? I can promise you that if we get sued, they won't win, right? I know defamation law. I know libel law. I can promise you that if we get sued, they won't win. But I can't promise you. We won't get sued because this is America. You can sue anybody for anything.

Right. And my boss was like, you don't understand. We can't get sued because we can't afford the insurance liability if we get sued all the time. Yeah. And that is the chilling effect. That is the you take that out of your story. You take that out of your, you take, you don't use that quote, right? It restricts what you are able to say, not because you're in the legal wrong.

be because if you're even in the legal gray area, you can't afford to do it. Right. No, it's such a good point. And, I mean, I think about this. I think about the EEOC suit against the New York Times. It's not about the Times. Like, they don't expect to win against the Times. What they want to do is prevent other smaller newsrooms from doing what the Times is doing. And in that case, it was sort of trying to insert some kind of gender and racial balance in the newsroom, mostly for coverage to ensure that stories, that mattered to different constituencies were accurately and adequately covered. But again, it's not about the New York Times.

It's just the biggest marker that's meant to be a deterrent to other smaller news organizations to get in line. And, you know, there it is. 100%. All right. Folks, it's August. That means school is about to start soon. So that pains me mightily. Well, for the kids, yes.

I got to go actually teach. is it. I've been on sabbatical. It's going to be a hard reentry for me. No, no. I feel you on the parents. I feel you on the parents. Yeah, I'm with you there.

But, like, I also have to go back to school. And after a sabbatical, like, this is going to be a hard reentry for Melissa Murray. I'll just say that. But we need to do a quick pivot to talk about a developing story from legal academia. So listeners, you know that this administration hates DEI. And I should be clear, they hate the old DEI, diversity, equity, and inclusion. They actually love the new DEI, which is dudes, ex-husbands, and imbeciles, right? In any event, the administration's overwhelming antipathy for the old DEI has prompted calls for the American Bar Association,

a professional accreditation organization for the legal profession, to eliminate one of its accreditation requirements for law schools, standard 206. Standard 206 requires law schools in order to be accredited to maintain diverse faculties and to actively demonstrate a commitment to diversity and inclusion for underrepresented groups. To be very clear, standard 206 can basically be boiled down to four words. Don't do Jim Crow. That's it. But alas, the Trump administration, in its zeal to make America great again, or at least white America great again, may be seeking a return to 1953. Since the inauguration, the Department of Education, despite being allegedly dismantled, issues guidance that challenge the legality of this modest commitment to fostering inclusivity in law schools.

And it has threatened to limit the ABA's role in accrediting law schools. Accreditation is a big deal because most states require attendance to an ABA accredited law school in order to qualify for the bar exam and professional licensing. And the ABA, in an effort to stay out of the administration's crosshairs and maintain its lucrative status as an accreditation organization, suspended Standard 206 so it could debate its use going forward. And at its recent annual meeting, there was a pitched debate over whether to maintain standard 206 or to scrap it and keep a low profile with this administration and Stephen

Miller. The ABA's House of Delegates ultimately voted to maintain standard 2O sticks, rejecting a proposal that would eliminate it amid growing political and legal pressure. The decision preserves the current rule for now, although the debate over its future is not over. The ABA's independent accreditation council still holds the final authority over accreditation standards and plans to reconsider the issue later this month. Basically, the ABA was like, should we be Paul Weiss or not? not and decided not, at least for now. I mean, this is just bonkers to me. I mean, again, standard 206 is just like literally, like, don't be racist.

Don't be obviously racist. Like, let's basically what it is, right? I mean, I don't know. I mean, I just go back to the fact in 2006 when I was hired at the University of California at Berkeley, I was only the second black woman ever hired on the faculty. Right? I mean, in 2006. I mean, that's Berkeley, like a legislative.

a liberal bastion. Like law school faculties are not necessarily hotbeds of diversity. Law schools. Again. How many black law professors that you have in law school? Three years, two semesters of peach. How many black law professors did you have? I had two. I had three and one was a visitor. I had two. One per year. Basically one per year. Yeah, one per year. I had to take her, I had to like go seek out her seminar, right? Like the, the, There was only one that was like naturally served up to me, right? And while I can understand people is, why should that matter? It matters a great deal.

It matters a great deal when you are a student trying to learn about some of the racist ass shit this country has done. And you want to ask a question. It matters if you feel like you're going to be able to ask that question in a supportive, safe environment, right? When you have to ask a white law professor, why is this case so racist? That question hits differently than if you ask it to a black law professor, even if their answers are going to end up being the same, right? Even in most cases, their answers are going to end up being the exact same, right? But it matters a great deal. It matters to me. I've told this story before, but I had Justice Elena Kagan in law school. She was my SIPRO professor, and I hated

Subpro. And so, you know, I went to office hours, basically, to complain about how much I hated her class, which was a choice that I regret. But in her office hours, Kagan used to clerk for Thurgood Marshall. And while she was trying to explain to me the importance of civil procedure, she was using stuff from Thurgood Marshall, which she knew, you know, not incorrectly. I was going to pay a little bit more attention to. I was going to take a little bit more consideration of than if she was quoting me stuff from Hugo Black.

Yeah. Right? She understood that. And that, you know, Kagan, obviously not Black, but that is the importance of having diversity and inclusion in an educational environment. Different students are going to respond to different things. And you should be able to have a law school that addresses everybody, not just white folks. It's a really good point. I think standard 206 is not long for this world. I never thought it was especially toothy, but it was something. It was like a guideline, I guess, a mark in the sand. But that's too much even for these guys. And, you know, it's so weird to watch this assault on DEI while you're watching an administration with a cabinet that literally is inferior to stuff. if I would see at IKEA.

So, all right. Ellie, before we wrap up the news, I have one final note. As you know, I just got back from vacation. I went to London where I was allowed to talk like this all the time. It was absolutely wonderful. I had the best time. And, you know, I talked about my schedule and all of that. So I loved that part.

That was great. The other thing I loved, you know, highlight of the trip was that I had the opportunity to eat leafy greens and berries with abandoned, secure on the knowledge that I would not be gripped by explosive diarrhea because the United Kingdom engages in regular food inspection and regulation protocols. So I love that for them and for me. Anyway, as I was headed back to America and the prospect of no longer being able to eat salad, the news coverage was absolutely fixated on an interview. that CNN's Dana Bash conducted with Secretary

Barricarcus slash whale juice slash raw milk, Robert F. Kennedy, a.k.a. Cheryl Hines' husband slash maybe Olivia Nutsi's boo thing, allegedly. Maybe? Maybe. I don't know. I think we're right past maybe. Maybe. I don't know. In any event, Dana Bash asked the secretary

some questions about the recent measles outbreaks, and his responses were genuinely unhinged. So I'm just saying this because as we're talking about DEI in law schools and whether Standard 206, which is just a modest instruction to not engage in rank discrimination, is on the table to be eliminated. This man gets to be the Secretary of Health and Human Services. Take a listen. Before becoming HHS Secretary for years, you have been one of the leading voices questioning the efficacy of vaccines. Do you accept some responsibility for this measles outbreak?

Absolutely not. First of all, this is an international outbreak. So, and we're doing better at handling it than any country in the world. Mexico has 15 times the amount of measles per capita that we have. Canada has four times the amount of measles. England has two times the amount of measles. Did I call us those measles outbreak? You're the most famous.

And I cause 137,000 cases. You're the most famous vaccine skeptic on the planet. Let me tell you, because actually Anthony Fauci and his diaries answers the question about why we're having a measles outbreak right now. The reason we're having a measles outbreak because of the COVID lockdowns. All right. Thoughts? We're all going to die. We're all going to die.

And on purpose, right? I always think, can you imagine how people react if RFK Jr. was a black man, right? Can you imagine how people would react if that was Terry Cruz talking about measles just like that? Like, people wouldn't stand for it. Not Terry Cruz. There would be a riot, right? President Hector, Eliza, Elizondo, Mountain Duke Camacho would not be allowed to say that. without a mass right over our collective health.

Yet this beer-eaten fool, bear-eaten fool, I mean, is out of here just wilding on all of our health. And people just stand for it. It's insane. It's dangerous. I don't understand how people allow this to happen. You know, my kids the other day asked me, uh, what if aliens came to Earth, what would be the thing they would be most surprised about, right? Um, and it was, it turned into a very deep philosophical conversation.

You know, I mentioned racism would like be like, you're all earthlings. How could you be? Right. Um, but one of the things that we were able to kind of hit upon was our lack of care for ourselves in our environment. right like i would imagine that an advanced intelligent race would look at our self-destruction you know as one of the most insane things out there right like i and i told my kids like if you think about it like even guerrillas practice good hygiene right like they they they they they take care of each other's health right and we don't we don't care for our own health when we let it become politicized. And that is insane. And I think it would be insane

to any intelligent species besides ours. I mean, I think the aliens would want to know why we decided to entrust our health to this man, like who has admitted to snorting cocaine off a toilet seat. Yes. They would want to know that. And they would want to know what we did to all the rhinos, right? Like, all right.

No, it's. It's too. It's a huge problem. But again, like, it's beyond a health problem now. It is a straight-up political problem. It is what people are voting for when they show up to the polls in November. They're voting for this guy. And they understand that and they do it anyway. Obviously, there are other people to blame for this. I think we should also blame the Supreme Court. I mean, the courts bent on deregulation, which has been led largely by Justice Neal Gorsuch, I think, is also to blame for why there are irregular inspections. of food safety at these large industrial farms. We could also put the blame, I guess, on DOJ antitrust for allowing the consolidation of these various farms, which, again, makes it easier for these broad outbreaks to happen because they're all coming from, like, a large source. This is what happens when you deregulate.

This is what happens when certain providers have so much market power that they can basically dictate the terms of regulation. And, I mean, it's just so unbelievable. Like, you cannot literally eat berries. Right? I mean, can I just, like, like, it was so honestly relaxing to be in the UK and not worry about this. Like, to just like, I was literally on a fucking cabbage binge, just eating every leafy green I could. I was snorting iceberg lettuce. Like, I was just like just with abandon.

Like, just full Peter Rabbit on that. I sure did. I sure did. please, sir, may I have another, have another head of lettuce, please? I was just like, and like, and then I came home and like, now I'm like roasting all my vegetables. Like, it's just, it's like, I cannot believe we're in this hellscape. Anyway. My kids are happy because we're like, no, no vegetables.

Yeah, like, yeah. Yeah, like the kids are like, I vote for RFK. The greatest. Good stuff. I love deregulation. Like, my son is like, best decision ever, loper bright. So listeners, when Ellie and I recorded this episode on Thursday morning, we obviously recognize that the Trump administration is going to Trump administration, and we would probably be back

in the studio to record an update. And lo and behold, on Thursday afternoon, President Trump signed two executive orders targeting birthright citizenship. Again, this is just weeks after the Supreme Court concluded that an executive order could not be used to unilaterally rescind the 14th Amendment's grant of birthright citizenship. The two new executive orders take a very narrow tack. They focus on what the administration has termed quote-unquote birth tourism. The first order excludes from birthright citizenship children born in the United States

to members of foreign terrorist groups or, among others, employees working for foreign governments. That might include consular employees, ambassadors, or even low-level people, working in embassies and consulates. With respect to that latter group, the children of individuals who are employed by foreign governments, foreign ministers, the children of ambassadors and things like that, technically, and I think historically,

they have already been excluded from birthright citizenship under the terms of Section 1 of the 14th Amendment, because Section 1 of the 14th Amendment specifically excludes from birthright citizenship those who are not subject to the jurisdiction of the United States. And historically, that has always meant the children of ambassadors or high-level consular employees. This seems to open the door even more broadly to exclude the children of individuals who work in the consulate, but are not those high-ranking officials who are clearly subject to the jurisdiction of some other foreign entity.

Yeah, so I did a shorter YouTube segment on this that will be out and then also a conversation with Rachel Cohen on this. But I wanted to just kind of highlight what you were saying in that what the administration seems to be trying to do is take a well-recognized but extremely narrow, exception to birthright citizenship and just blow a hole through it and expand it beyond recognition. because, of course, birthright citizenship did not apply to children of foreign ambassadors. And now the administration is saying, well, it doesn't apply to children of anyone who works at an embassy or is an employee of a foreign government. And, you know, taken seriously, would this mean that the children of someone who, I don't know, cleans the bathrooms at a foreign embassy or the United Nations is not a birthright citizen? Like, that's the question.

And, you know, the exception for people born to parents who are, you know, members of a foreign terrorist organization that's obviously extrapolating from the exception for people born to, you know, occupying or invading armies. And the person who invited the administration to do this, say his name, it's Brett Kaffinaw, who wrote that separate opinion in Trump v. Barbara saying, well, of course, the Constitution's principles have to be applied to new circumstances. And that means not just the rules themselves, but also their exceptions. And that is what the administration is doing. So the second executive order, you mentioned there too. The second one is entitled ending birth tourism. It excludes from birthright citizenship the children of, quote, birth tourists. That is, individuals who visit the United States while pregnant for the purpose of delivering

the child on U.S. soil so that the child will be eligible for U.S. citizenship. The first order also excluded children of non-citizens who enter into a surrogacy agreement, Like if green cardholders use a surrogate, is there a child potentially? Not a citizen. Like it's just truly deranged, unhinged stuff. Which means it came from the mouth of, I don't know, senior White House advisor, Deputy White House Chief of Staff, Stephen Miller, who was present at the signing of these executive orders and had this to say upon their announcement.

The president is using his authority as commander in chief to sign first an executive order using the new ruling the Supreme Court issued to expand the definitions of people who are ineligible for birthright citizenship. That includes, for example, alien enemies in the United States, members of foreign terrorist organizations, and large categories of people

who lobby and act on behalf of foreign governments. And so with taking this action, it ensures that large numbers of people who wrongly would be getting birthright citizenship will no longer be eligible for those benefits. So just for some context, listeners about the so-called birth tourism. Around 3.6 million babies are born in the United States each year, according to the Centers for Disease Control and Prevention. In 2024, fewer

than 10,000 babies who were born in the United States were born to foreign residents. So obviously this is a problem that, I guess, is important enough for this administration, but it doesn't seem like it's the kind of massive influx of people that they're making it out to be. Certainly doesn't seem like it's as important as other challenges facing us right now, like the Iran War, our water supply, the ability to eat. Diarrheal lettuce. I was going to say. And, you know, the Strait of Hormuz would like a word. So there's that. Many things. You know, speaking of the kind of additional developments, you know, the Trump administration and the federal courts were definitely going to trump admin in federal courts

because also since you recorded, the D.C. Circuit came out with their decision in which they said, buy a two to one vote because this is the federal courts, that of course the president destroying the White House, a.k.a. the people's house, in order to build a ballroom without congressional authorization is illegal. The majority opinion said, quote, we are aware of no instance in American history in which a president unilaterally and using privately collected funds demolished substantial portions of the White House that Congress authorized to be built and American taxpayers paid for until now. End quote. Decision two to one, of course, a Trump appointee to the D.C. Circuit, one Naomi Rao,

dissented since auditions for a Supreme Court seat are still ongoing, even though there is not as of yet a vacancy. The D.C. Circuit stayed their opinion for several days to allow the administration to run off to daddy Supreme Court to ask for a stay on the shadow docket. The president said on truth social they would be doing so. we will see whether that materializes. When other development in the federal courts, a Trump-appointed judge declined to dismiss the indictment against the Southern Poverty Law Center, which had argued the indictment was brought against them vindictively and selectively. The Trump-appointed judge even

denied the request for discovery. That is the ability to ask questions, collect evidence, and look into whether this indictment was sought, you know, selectively and vindictively. So that is, an unfortunate development, and we will see how that case plays out. That case, of course, is related to the Florida Attorney General's demand for an impeachment inquiry into 11th Circuit Judge Nancy Abootoo, which Ellie and I talked about earlier in this episode, right? So that is a full rundown of the news. Thank you, Leah, for joining us. We are going to take a break, and when we come back, Ellie and I will share our favorite things. This episode of strict scrutiny is brought to you by Alloy Health. There's something nobody tells you. Your skin starts to change in your 40s,

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I think you did admirably here. We always close out our show by offering our listeners there's something uplifting, our favorite things, things that we look forward to, things that we experience that brought us joy that might bring them joy. So I'm going to invite you to share with us what your favorite things were from this week. Oh, you shouldn't have asked me. All right. So the Supreme Court granted cert in a case called Jopi v. Alaska. And I love this case. Jopi is an Alaskan bush pilot, meaning that he owns and operates his own private Air Service has his own plane, flying people to weird-ass places across, let's not forget, our nation's largest state, Alaska, right? Now, some of the counties in Alaska are dry counties,

which means you cannot sell or transport alcohol to them, something, something Puritan, something I don't really understand it, right? Long story short, one of his passengers, one of Jopi's passengers, brought a six-pack, like literally just a six-pack of beer to, one of these dry counties, right, on Jopi's plane. A trial court ruled that Jopi could have or should have noticed the six-pack and that therefore he was in violation of the county's dry laws so that Jopi could be fine, right? So the jury- Wait, we can ask a question. Yeah. What, did the passengers, like, walk on with a six-pack or was it in his carry-on? Apparently, and don't ask me why I know this, because I really went deep on this case. So apparently it was like in the passenger's carry-on.

bag, but the carry-on bag wasn't fully zipped. So you could have seen as you're getting onto the plane, if you looked at this bag, there was like a six-pack kind of sticking out of the carry-on package. And look, unlike the Supreme Court, I'm going to take the trial court's rule as fact, right? I'm going to do what you're supposed to do and say there was a whole trial here. And a jury said he should have known that there was a six-pack on his plane. Okay. So you get a fine for that, right?

So the fine is $1,500. And it's like that's a perfectly reasonable fine. It's a deterrent. Now you're checking all the bags before you load your plane. Right. If you want to hold people accountable, $500. All right. But part of the violation here includes taking away the man's plane.

All right. So the punishment that the district court imposed was to give him a $1,500 fine and to take away his plane. And to take away his plane. So this is obviously. obviously an Eighth Amendment challenge. And so yes, exactly. Jopi, you're exactly right. Boom.

Jopi appealed the ruling against him on an Eighth Amendment, cruel and unusual punishment challenge. And the Supreme Court actually granted cert on this case. So sometime next year, we're going to hear this case. And man, I hope he wins. Because, like, in my mind, Jopi is now like Han Solo, right? He is just out here. He is just doing his job.

He is smuggling raptors. and six packs, and now you're going to take away his Millennium Falcon on some bullshit, right? But the other thing that's really interesting here is that Neil Gorsuch is an Eighth Amendment hard ass. He doesn't think the Eighth Amendment applies to break. Like, he will string you up by your generals under the Eighth Amendment. He doesn't care. So how is a person like Gorsuch who also loves the West and loves freedom and loves liberty? Like, how is Neil Gorsuch going to deal with a freedom-loving American having his plane taken away by the government over a six-pack of beer versus his antithy towards the Eighth Amendment?

I could not be more excited for this goddamn case. Wait, wait. So are you optimistic about Jopi's chances because I'm not? No. No, I'm not optimistic. I'm not optimistic, given the makeup of this. court. But, but, but I, I, I want to see him do it. I want to see him do it. I want to see these conservative, Republican, libertarian-ass people take away this man's plane. Because, because they want to keep open the ability to kill people. I want them to have to, to, to go through that thought process. I want to kill people so badly. I'm going to take away this man's plane. I want to see him do it. I cannot wait. So if Jopi is the Han Solo here. That's good news, by the way. That was my happy place. Okay. Your happy place is a dyspeptic dystopia.

But I do love that in your happy place, if Jopi is Han Solo, the court is job of the hut. Yep. Yep. That's exactly what's happening. That seems right. That seems right. So my favorite things this week are, one, being able to eat leafy greens with abandon to just like have a lettuce bin. That was a lettuce bender. It was amazing. Thank you to the good people of the UK for providing me with that experience.

I also love, love, love meeting stricties in the wild. So I ran into Jeff Canyon on the New York City subway, and he is not only a fan of public transportation. He is a fan of the podcast as well. So great to meet you, Jeff. And Leah texted me to let me know that she ran into Nathan on a Delta flight. And she reports that Nathan loves the pod and is absolutely. absolutely delightful and obviously the two things are related. So Nathan, glad you and Leah had that meet cute. My other fave from this week is I just finished Robin Lee's crash into me. This is a book and it was awesome. I literally, again, kind of put my life on hold so I could finish it. It is sexy, propulsive, just a great, great read. Gen X, you will remember Robin Lee because she is a former actress. She was in the 1990s movie, Have Plenty. Did you see this? Ellie, Have Plenty. Do you remember that movie? Probably. I don't remember it, but I probably saw it. It's kind of a black Gen X favorite. That's a deep cut for you. She's also the author of The Idea of You, which was made into, I think, a Netflix movie starring Anne Hathaway and the very delectable Nicholas Galzatine. She's just a great author, and she's a Columbia Law grad. And this book was great. So highly highly recommend Robin Lee's crash into me. Also, the title comes from a Dave Matthews song, and I do like the DMB.

Nice. UVA, always. All right. So that's all we have for you today. Thanks so much to our guest host, Ellie Mistal, always a pleasure to have you on the pod. I think you're the first guest host who's ever vape continuously during the podcast. So thank you. I just want to remind our listeners, again, to be on the lookout in your feed for the first of our summer bonus episodes, this one about Know Your Rights. It's going to be dropping on Thursday. Take a listen. It'll be really important, really informative. And that's all we have. We'll see you next week. Peace. Strict scrutiny is a crooked media production. Our show is produced by Melody Rowell and Michael Goldsmith.

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