Strict Scrutiny - Supreme Court Declares Racism Over

Episode Date: May 4, 2026

The 5th Circuit gave us a doozy late on Friday night by tightening access to the abortion drug mifepristone—Leah and Melissa break it down. Then, the full crew dives deeper into the Court’s catastrophic Voting Rights Act decision in Louisiana v. Callais (for their initial reaction, check out last week’s emergency episode). Next, they recap the troubling oral arguments in Mullin v. Doe, the case about Temporary Protected Status, in which Trump’s Solicitor General tried to argue that the President’s extremely racist statements about migrants from certain countries weren’t, in fact, racist at all. Also covered: Trump’s ballroom, arguments in an important Fourth Amendment case, and how some savvy federal judges are turning the administration’s favorite legal concept—the unitary executive theory—against it. Favorite things: Kate: The Loneliness of Sonia and Sunny, Kiran Desai; Transcription, Ben Lerner Leah: Ariana Grande’s new album announcement; Noah Kahan on tour; SCOTUS Drops The Other Shoe on the Voting Rights Act, Sherrilyn Ifill (Sherrilyn’s Newsletter); The Slaying of the Voting Rights Act by the Coward Samuel Alito, Rick Hasen (Slate); The Supreme Court is Corrupt. This is What We Can Do About It, Jamelle Bouie  Melissa: Yesteryear, Caro Claire Burke; Voters Can Be Disenfranchised Now, Adam Serwer (The Atlantic); Legal Defense Fund Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2026! 6/20/26 – New York City Learn more: http://crooked.com/eventsOrder Melissa’s book, The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern ReaderPreorder a signed paperback of Leah’s book, Lawless, here.Follow us on Instagram, Threads, and Bluesky

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She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our next. Struck scrutiny listeners, after we finished recording late on a Friday evening, the Fifth Circuit decided it was time for slapping some additional restrictions on Miffa Pristone, one of the two drugs used in the current medication abortion protocol, because what gives separation of powers more than lower court's second-guessing expert agency determinations? Why not? Why not? That's separation of powers to me. So in a breezy 18-page opinion released after 5 p.m. Eastern, which is how you know they were trying to sneak one past the

country, not going to work on us. Stanford Stormtrooper, Kyle Duncan, wrote for, that's Stuart Kyle Duncan, my apologies, wrote for a unanimous panel of judges, two of whom, including himself, were Trump appointees, that the Food and Drug Administration was wrong to allow telehealth, telemedicine prescriptions of Mitha Pristone, one of the two drugs used, again, in the current protocol for medication abortion. Every time you say Stuart Kyle Duncan, I think of Duncan donuts. I do. Every time I say Stuart Kyle Duncan, my uterus shudders.

But this latest decision reinstates the in-person pickings. up requirement for Miphyprisome, which forces women to go in person to a doctor or licensed nurse practitioner in order to get Mipristone, which of course makes medication abortion way more difficult to access for people in states with abortion bans because now they have to travel out of state just as they would if they obtained a procedural abortion. The Fifth Circuit purported to issue this ruling such that it has nationwide applicability. That is to say, the court issued what is called a vacatur or a stay of the entire telemedicine determination. This is a procedural maneuver that blocks the FDA's decision on a nationwide basis.

That procedural machination makes it as if the FDA's telemedicine decision didn't even exist. So this decision will have devastating consequences for women, especially women in states with abortion bans. In 2023, 65% of abortions were medication abortions. Medication abortion accounted for the majority of abortions that were provided in most of the states with out total abortion bans in 2023. And again, if you can't obtain Mifibristone via telemedicine, you have to do so in person. And many women just are not going to be in a position to undertake the out-of-state travel if they live in a state with an abortion ban, whether that's because they lack transportation, time off, resources, support, or any other number of reasons.

And to be very clear, medication abortion is many times more safe than actual childbirth. The risk of maternal death associated with childbirth is approximately 14. times higher than the risk associated with medication abortion. And that number goes up even higher for women of color and black women in particular. But there's no racism. Remember that from this week. There's no racism. Medication abortion is basically about as safe as Tylenol. But now the Fifth Circuit has made it a lot harder for individuals who want to control their reproductive capacity to have access to it. The Fifth Circuit's decision is stunning for a number of reasons. It is a judicial order to impose restrictions that the FDA, the Food and Drug Administration, deemed unwarranted.

The decision also uses the Trump administration's abandonment of reproductive rights, the Trump FDA's baseless suggestions that it just wasn't totally sure that telemedicine was safe for medication abortion as a reason to issue this nationwide stay. And the decision leans into something we have talked about before called fetal personhood, the idea that fetuses are people entitled to rights. That theory would mean that abortion, has to be banned nationwide by order of the courts because if fetuses are people, then abortions would deny the fetuses their constitutional rights. We'll obviously have more to say about this

late Friday night ruling in our next episode, but for now we just want to emphasize a couple of points. First, we want to emphasize how there are so many aspects of this particular decision that make all of this look a lot like collusive litigation, as if the Trump administration took certain actions and made certain statements in order to lay a pathway for this judicial decision imposing nationwide restrictions on Miffa-Pristone. So that's one point. We're not saying that there's actual collaboration going on here between the Fifth Circuit and the Trump administration, but we are certainly saying that the Trump administration made it infinitely easier for the Fifth Circuit to have a glide path into this decision. And basically, they gave them a rationale, like

supplied a rationale for this court to do this. And that's pretty useful to the administration because it means they got the abortion restrictions that they may have wanted without having to announce that they were imposing them on their own initiative rather than having the courts do it. So the second point we will emphasize is how there are aspects of the decision that are just iv-dripping fetal personhood into their veins. Like these guys are leaning wholeheartedly saying it with their whole chest that under the law fetuses are people in ways that alter the court's legal analysis. And again, if fetuses are people under federal law and in particular under the Constitution, then the Constitution itself imposes an abortion ban or so federal courts might be obliged to announce. So there's that aspect of it as well. Let's tick through some of the collusive aspects or what we think look like collusive aspects of this litigation, the parts where the Trump

administration basically facilitated the court doing this. Maybe not in fact, but certainly they laid a pathway for the court to do this. In justifying their decision, the Fifth Circuit relies on the fact that, quote, in September 2025, the FDA began a comprehensive review of Mithopristone, including the 23 REMs. And the court notes that, quote, when announcing the review, the FDA conceded the, quote, lack of adequate consideration underlying the prior REM's approvals. In other words, the Trump administration in that 2025 announcement was posturing and making statements about the 2023 REMs that actually would then make it easier for the limitations on abortion that the Fifth Circuit is imposing now. It's absolutely bonkers that the government made that

kind of concession on the eve of this litigation, but here we are. And it's somehow even worse than that because the Fifth Circuit also notes that, quote, FDA's response, that is, their response to the court, does not address the merits, i.e. whether the FDA's removal of Miffa. Stone's in-person dispensing requirement was arbitrary and capricious, i.e., the FDA effectively conceded that the district court was right to say that the challengers were likely to succeed on the merits in challenging the ability to get Mifapristone via telemedicine. Now, the district court had nonetheless denied to stay because it concluded that the balance of the equities and public interest counseled against judicially imposed nationwide restrictions

on Mifapristone. The court also relied on the FDA in explaining why the quote unquote public interest weighed in favor of imposing these new restrictions. So the court notes that, quote, the FDA itself now concedes the regulations were marred by procedural deficits and a lack of adequate consideration. So on the second point we wanted to emphasize, and that's fetal personhood, it's all over this opinion. So explaining why the public interest favors this state, the court writes, quote, Dankos, that's a manufacturer's, potential. financial losses pale beside Louisiana's sovereign interests in its laws protecting the unborn. And explaining why Louisiana would be irreparably harmed without this day, the court writes that the FDA's policy, quote, undermines its, that's Louisiana's laws protecting unborn life. And, quote,

once lost that sovereign prerogative of protecting unborn life cannot be regained by legal remedy. It's almost like these judges read the Jody Cantor Adam Liptack article from last week. It was like, you know what? When the government brings something and requests to stay, they're always irreparably harmed if they don't get it. And they're like, you know what, that might apply to Louisiana too. Right. I think that's a, yeah. Not the federal government, but Louisiana, right?

Yeah. Just think about it. Yeah. Think about it. Think about it. All of this is incredibly very fetal personhood forward. It's kind of terrifying in many ways that the next frontier in abortion restrictions is really going to be about courts ordering states in the federal government to ban abortion either on this

theory of fetal personhood entirely or some combination of fetal personhood in tandem with like weird questions about the safety of these particular medications. The other thing I want to note about all of this is this is so much of a departure from what the court was saying in Dobbs when they just said they were going to settle this abortion question once and for all. And I'm just steering in Rachel Rubichet, David Cohen, and Greer Donnelly, who wrote that brilliant paper, the new abortion battlegrounds, and said, like, this is not settled. This is going to be, there's going to be new stuff. And they predicted all of these fights over abortion pills and telemedicine. So, you know, there's that. You might also be wondering,

listeners. This nationwide ban on Miffa Pristone, that sounds a little bit like a nationwide injunction. I thought the Supreme Court put a halt to the practice of lower federal courts issuing nationwide injunctions in Trump versus CASA. Well, that's a very fair question, but the court issued a stay here under 5 U.S.C. Section 705, which is a federal statute governing judicial review of agency actions. And so the Fifth Circuit says that CASA was different because it was about federal court's equitable authority under the Judiciary Act of 1789. And in their defense, in CASA, the Supreme Court dropped a footnote saying the no nationwide injunction rule didn't necessarily apply to decisions vacating an administrative agency's rule under the APA. I love when their little loopholes that are intended to make you feel better about things they're closing off actually work the opposite way to really fuck you. As ever.

as ever. So a few other quick reactions to this opinion, which came out an hour before we recorded this. One is, in some ways, the math wasn't mathing, or at least not in the way the Fifth Circuit suggested it did. So the Fifth Circuit wrote that, quote, the record shows that the policy that is telemedicine now facilitates nearly 1,000 illegal abortions in Louisiana per month. Now, the Fifth Circuit treats that as an injury, but that kind of captures just how consequential this ruling might be, affecting potentially 1,000 Louisville. Louisiana women per month, and that's just in Louisiana. Additionally, consider that statistic, the 1,000 women per month against part of the court's standing analysis where the court suggested Louisiana was injured because it paid Medicaid costs for two women who needed emergency care caused by Mififapristone complications. Let's see. Two women needed emergency care. 1,000 abortions per month since 2023.

You think that shows a significant risk of injury? I'm not so sure. Also, we have no idea if those injuries were even caused by the telemedicine aspect of Miphaepristone or whether they would have been prevented by an in-person pickup. Don't let that kind of logic stop you, though. Exactly. What is standing to get in the way of a good time? There was also just something super greeting about the court talking about Louisiana's sovereign injury

and not being able to enforce its abortion ban, like its sovereign injury and not being able to control and subjugate women. In other parts of the opinion, including on exhaustion, that is whether the plaintiffs had raised this argument to the agency, the court relied on its previous decision in Alliance for Hippocratic medicine, where it notes, true, those decisions were reversed on standing, but their reasoning on exhaustion was persuasive, end quote. Not to say we told you so, but this was part of the danger when the Supreme Court punted on medication abortion in the Alliance for Hippocratic Medicine decision. Remember, in that case, the court said that the anti-abortion doctors and dentist did not have

standing to challenge the relaxation of restrictions on Mifapristone or the overall availability of Miffapristone. But it left on the table all these crazy merits rulings that the lower court and the Fifth Circuit had issued. And they were just waiting to be brought back with a vengeance after the 2024 election. And Republican-controlled states stepped into the breach. They're kind of like trigger laws, like trigger precedents that just like lay there and waiting. There are no new ideas. They just keep farming them to different contexts. Indeed. We should note that just because this nationwide ban on Miphaepristone has been issued, that doesn't mean that medication abortion is entirely off the table. As we have noted on this podcast

before, the second drug and the two drug medication abortion protocol, mysoprostol, is also available. Obviously, Mipipristone is the preferred method, the two drug protocol together is the preferred method, but myzoprostol by itself would also suffice, although there are different responses and reactions to that that doctors have noted. But this is a devastating decision, even if there are available alternatives. And it makes very clear that the war on abortion, the war on women's reproductive rights continues apace. This hasn't been settled.

Dobbs has not ended this. In fact, I think it's only accelerated it in a lot of ways. And this very, very safe method of reproductive care, which is used not only. only for those seeking to terminate pregnancies, but those who need it for miscarriage management and literally one in three women suffers a miscarriage and loses a pregnancy and requires this kind of medical care. All of that is on the table right now with this new nationwide ban imposed by America's worst circuit court. Now, there's a chance that the Supreme Court will stay.

The Fifth Circuit stay. I mean, we are all, after all, getting ready for the midterms, probably not super convenient to have abortion put back into the spotlight. I don't know. When you don't have all those black people voting, you might as well like yolo. Yeah, no, we shall see. We shall see. I think Clarence is like, let's go for it. Let's let it ride.

He's always like, let's go for it. Let's let it ride. Indeed. Thanks for listening, as always. And now back to our regularly recorded episode. This episode is sponsored by Better Health. May is Mental Health Awareness. month, a reminder that whatever you're going through, you don't have to go through it alone.

Perfect timing, since we are awaiting the end of the Supreme Court releasing opinions in argued cases, which means we're gearing up for bad decision season. Life is a journey. Following the Supreme Court is a journey, some days feel good and others feel overwhelming. Those would be Skodas days. Whatever's keeping you up at night? Cough, Sam Alito's replacement, it's easy to feel like you have to figure it all out on your own. But the truth is, no one has all the answers. And no journey should be alone. Having someone with you to listen, to understand, and to support you can make all the difference. What are the things keeping me up at night these days? Honestly, where to start. I'm becoming an associate dean in July. I have a bunch of writing projects. I don't want to let go.

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required, equivalent to $15 a month. New customer offer for first three months only, then full-price plan options are available. Taxes and fees are extra. See MintMobile for details. Hello and welcome back to strict scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your host. I'm Melissa Murray. I'm Kate Shaw. And I'm Leah Lippman. It's a very special day, really, very special week because happy early book release to Melissa Murray. Her book is officially out tomorrow. If you are watching this on YouTube, you can see Melissa displaying her book, me proudly wearing the merch that I made. Kate also displaying the custom merch. And it's a constitutional AF merch if you are not seeing it with your eyes. It's really nice.

So the perfect time to get you. You know, the perfect time to get you. your copy of the Constitution, a comprehensive and annotated guide for the modern reader. Not for the unmodern reader. Some people don't need it. You can show your least favorite Supreme Court Justice how to read. And don't worry, we have a very special episode for you next week that focuses more on Melissa's new book. But in the meantime, what a perfect occasion to help democratize the Constitution and empower more people to make constitutional claims as part of an effort to correct the constitutional claims being made by the people in power. And part of what Melissa's book, again, out tomorrow gets into is the real and rich and radical history and vision behind the reconstruction amendments that Sam Alito basically wrote out of the Constitution in the Voting Rights Act opinion last week. Additional great timing. Last week, six justices. No points for guessing which six, the Republican appointees, the ones in the majority in the immunity decision, attended the state dinner for King Charles, making no secret of their insatiable thirst for Kirst. Kings. Melissa's book, by contrast, has more no Kings energy, which these guys really need. Yeah. I do want to just like just drop an asterisk, though, which is to remind our listeners,

especially those who like a book for television and radio, that Melissa should be everyone's go-to expert on all things royal, because she knows literally everything about them. And I think that is just one of the many reasons she understands and can so eloquently explicate why we should not be ruled by them. Nicole Wallace knows now. Thank you for that very generous introduction. I will just say, I love it. I love it. that this book is coming out on May 5th, Cinco de Mayo, so you can just pour some salt on it, lick it, and do body shop, whatever you want. Anyway, let's get down. Hello. I missed you guys last week. I'm back. Likewise, girl. Well, we can throw it into the blender and make margaritas. That's another,

that's another way you could possibly use this book. Like, you inject it, do whatever you want. Inject it in any form. But use your pre-alcohol first. Okay. Let's get down to business. In this episode, listeners, we are going to recap last week's oral arguments with a folk on the challenge to the administration's cancellation of temporary protected status for Haiti and Syria. We'll also touch on some legal news, including what we learned about ballrooms and national security. I did not know about this apparent relationship, so, you know, news to me, but obviously I'm here to learn, whatever. It's huge, just going to put that out there. We are also going to discuss how some intrepid federal judges are turning the unitary executive theory

against the administration that is apparently obsessed with it. And I just want to say, master's tools, y'all. You love to see it. It's great. Obviously, the thing we really do need to talk about is the fact that last week, the court issued the huge Voting Rights Act opinion in Louisiana versus Kelle. Leah and Kate, you did an amazing, excellent emergency episode on the case, Louisiana versus Kelle, with special guest and in front of the pod, Mark Elias. Listeners, if you have not downloaded that yet, what are you doing with your life? If you don't say I'm fighting for a multiracial democracy that is the wrong answer, get it together, download this. It is absolutely excellent. If you're still bearing your head under your pillow, I think that that's okay,

actually, but it's time to come out. Don't despair, prepare. Democracy hive, rise. Yes, this is the time. Obviously, there's still a lot more to say about the Calais decision. So listeners, if you'll indulge us, we are going to say a little bit more about why this opinion is so catastrophic. We will also note how the decision in Calais literally set the stage for the court's bonkers argument in the TPS cases, which were heard on literally the same day that the court announced the Calais decision. And that is not all listeners. We are also going to go over the court's opinion on administrative subpoenas in First Choice Women's Resource Centers, Inc. versus Davenport. You may remember that it used to be called First Choice Women's Resource Centers versus Plotkin. Same bullshit, though, don't worry.

And same court. So there we are. But first, I have some more thoughts on Calais. I think Kate has more thoughts on Calais. And Melissa, since you couldn't join us for the emergency episode, we wanted to make sure you had a chance to share yours as well. I want to talk more about the decision and in some ways feel like we should always be talking about it just because it is so significant and so warping our democracy at light speed in real time. And the decision that effectively nullified the Voting Rights Act and its redistricting protections that ensure political opportunities for minority voters is, as we attempted to convey, really bad for democracy, also multiracial democracy, also voters of color.

But it's bad for democracy. And I think people need to realize that because it allows white elected officials to protect themselves from electoral competition. That is anti-democratic, effectively turning the House of Representatives. representatives into the Senate where states just send one-party delegations to the House, replicating Senate malapportionment. And in my fury on the emergency episode, I am worried a few points didn't come through clearly enough. And since this is our podcast, I am allowing myself to make them more clear. This might be a recurring segment, honestly, for like the next two years.

So brace yourselves. One is just the extent to which this decision will, in Justice Kagan's words, quote, lay the groundwork for the largest reduction in minority representation since the era of following Reconstruction. That is because the political opportunity, majority, minority districts that stand to lose their protection are many of the districts that elect black and brown political officials. The decision is a way of resegregating our institutions and politics. Although, you know, the percentage of black voters, you know, increased markedly after the initial passage of the Voting Rights Act, it wasn't until the 1982 amendments that Sam Alito

read out of the Voting Rights Act that the percentage of black and brown representatives really increased. And the second is the extent to which this decision parallels the aftermath of reconstruction, which led to the election of black political officials, to state and federal offices. But the demise of reconstruction, which the Supreme Court aided and abetted, meant the number of black officials in Congress was never above single digits and was most frequently somewhere between zero to two, including in states like Mississippi where the black population was 35 percent, never sent a black representative to Congress during that period. And it was a Voting Rights Act that changed that.

Can I take a beat on that? I know you're talking mostly about the House of Representatives. I think it's even as stark, more stark when you think about the Senate. Immediately after Reconstruction, there were two black senators serving in the upper chamber of Congress. So the first was Hiram Revels, who was chosen by Mississippi lawmakers to serve the remainder of a Senate term. This was the term that had gone on while Mississippi had seceded from the union. And so by the time they decided to let Hiram Revels be the senator, there's like a year left on this term. So they're like, yeah, why don't you take that year and be a senator from Mississippi?

And so Hiram Rebels went to the Senate and served from 1870 to 71, faced fierce opposition to his seat. They challenged his citizenship status, adverting to Dred Scott. I mean, make it make sense. He took the oath of office to serve in the Senate 22 days after the ratification. of the 15th Amendment. And abolitionist Wendell Phillips said that Rebels was, quote, the 15th Amendment in flesh and blood. I mean, literally, this is what this amendment was made to do. The second senator was also from Mississippi. This was Blanche K. Bruce, who represented the Magnolia State in the Senate and was the first African-American to serve a full term in the U.S. Senate. He served from

1875 to 1881. Notably, Reconstruction ended in 1876. with the Hayes-Tilden compromise. And obviously he leaves the Senate in 1881. And there isn't another black senator in Congress until 1967, two years after the Voting Rights Act. And again, even with the VRA, in that period from 1965 to today, there have only been 12 black senators in the Senate. I mean, so this is progress, but it's slow, it's incremental.

And the Supreme Court basically put the cabosh on that limited progress. Right. Unless there's mass. massive change, what the Supreme Court has said in motion, is a period of retrenchment that is going to parallel the post-reconstruction period of retrenchment. And it feels like that's by design. Yeah, resegregation. You know, Jim Crow, or as I just sputtered out with Melissa on MS. Now, Jim Crowledo. Sam Crow, if you're a tons of anarchy fan. Yeah, exactly. Either any works. And still, I just don't know if those numbers adequately convey how consequential and awful this decision is. And it's been frustrating for me feeling like the world and the country is just like not sufficiently outraged. The New York Times has an excellent series of articles on this with graphics if you're more of a visual person that I'd encourage everyone to check out illustrating again the significance of the Voting Rights Act to making Congress representative. And of course in the wake of the decision, as they knew what happened,

states are already clamoring to erase political opportunity districts and political representation. Totally. The Florida legislature approved a new congressional. map intended to maximize Republican advantage in the state as part of this broader national redistricting battle. Louisiana's Republican governor, Jeff Landry, issued an executive order that delays House primaries, though not Senate primaries, until July 15th or until such time as determined by the legislature. The elections in Louisiana had originally been scheduled for May 16th with a June 27th runoff date, so, you know, that is happening. I think your favorite Senator Kate, Marsha Blackburn of Tennessee, made some statement.

She wants to get in on this. She sure did. She was like, you know, like this decision is going to help Tennessee stay red. I mean, was that the point? I think it might be saying the quiet part out loud, Marsha. Marsha, Marsha. There's a movement and possibility in Alabama as well. So I think we honestly don't know what the full fallout is going to be.

And it could be. The speed with which they are doing this just like Shelby County. It's just like. Just like Shelby County, but it also, Justice Alito just declared racism is over. Right? And of course they knew this was going to happen. It's such a cowardly craven decision. And again, this is happening. And just to remind folks, right, like in 2013, when the first time the Supreme Court declared racism over in Shelby County, literally later the day the opinion was issued, state started moving to implement restrictive voting laws they would have had to get pre-cleared under the pre-Shelby regime.

But I had carte blanche to kind of move forward with after Shelby County, we're really. seeing that replay right now. And I also think, you know, it is a mistake to think just about what the impact on the 2026 map will be like obviously, you know, Leah Melissa, you're talking about kind of Democratic impact more broadly. It may be that a handful of states decide that because the 2026 map is already going to be really tough for Republicans redistricting might actually backfire if they're going to make more districts that are more competitive. So I don't actually know at the end of the day how many new legislative districts they're going to be in 2026. But I do think between 26 and 28, there's no question that they are going to draw out to the maximum

extent possible black and Latino representation in Congress and access to meaningful democratic participation. And it just might take a few cycles for that to fully play out. But again, absent some major course correction, that is the path that we are on. Let me just maybe mention a couple of other things about the opinion that that's okay, because the kind of emergency episode was like, you know, in the heat of speed reading and hyperventilating and then podcasting. And like, I at least did not read the opinion as carefully as I subsequently have. So I just wanted to flag a couple things. One is something that others have mentioned, but we haven't on this show, which is that Sam makes this insane claim. Like, Black voters

now participate in elections at similar rates as the rest of the electorate. Okay, that's not the insane part of the claim. This is. Turning out at higher rates than white voters in two of the five most recent presidential elections nationwide. Okay. So he says that. Obviously, if you listen and sort of think about it for 30 seconds, the two elections in which Black turnout exceeded white turnout were the two elections in which Barack Obama, the first black president, was at the top of the ticket. And those two elections also occurred before the court's decision in Shelby County. So to suggest that that is this kind of silver bullet evidence that racism is done and racism in voting is definitely done is so unhinged.

I kind of can't believe that his law clerks and colleagues let him get away with keeping that statement without explication in his opinion. This is standard for this court because in Shelby County versus whole. older, the chief justice did the same fucking thing and was like, you know, like there have been massive numbers of black people voting. I'm like, yeah, because there's like a black dude on the ticket and everyone got super excited. Like, there are no new ideas. So no new clerks, no new ideas. No, this is a lot of recycled logic from Shelby County, but it's Sam and so it's somehow infinitely worse because everything he does is. And sneakier. Like Shelby County at least had the

decency to, you know, not justify itself in conventional legal reasoning, but say we are invalidating part of the Voting Rights Act. Sam is much sneakier, so he says we're not, but of course. I'm not going to give you that. Like, I thought Shelby County was sneaky as fuck too, right? I mean, so yes, they're like, we're just invalidating the pre-covered formula, the preclearance formula. Yeah, the formula. But like, I mean, like, we know Congress isn't going to write a new formula, so we're basically fucked up section five anyway. So you're right. They try. They try to be sneaky. They try to be sneaky there too as well. Okay. That's fair. What do you try to say? In addition to being sneaky, he preserves it so it can be used against Democratic jurymen.

So they can bring intentional discrimination claims against majority black districts. That's why he doesn't kill it. Yeah. Yeah. This is like the due process. Like we're going to keep the due process and not kill it entirely. So when we get to fetal personhood, we can use the due process. Totally. Yeah, which is a point we've obviously made about Dobbs.

Like Clarence, keep it down. Keep it down. Yeah. Anyway, I don't even know what to add to this other than I told you so. Like did I not say after Allen versus Milligan that, yeah, I mean, I call it. I caught so many strays when I said that. Just like reminding you, like I caught so many strays and I said, Alan versus Milligan was not the last word that they were just like,

they couldn't do it 10 years after Shelby County so they'd wait a while. Here we are. These schools will stop at nothing to fully decimate the legislation that people literally were beaten and killed in order to enact. I mean, just absolutely insane. And I think the thing that is most stunning to me is the absolute cravenness of it. And not just the insistence that they are preserving section two when we know that they are not, but that, you know, they are preserving it so it can be used in this way against minority voters,

against Democratic voters going forward. And because they know they're going to catch a whole bunch of flack for killing the Voting Rights Act. I mean, this is like Casey where they said, you know, we're preserving the central tenants of Roe. And then they really just, they hollowed out Roe so that it was a number. of itself. Same kind of thing is going on here. Like they are trying to preserve themselves and they've done, I guess, a good job of it unless people stay on their necks and keep saying, you killed the Voting Rights Act. You just killed Section 2. And I think we have to say that. I'm stunned by the cravenness of the Chief Justice, who is in the majority in Allen v. Milligan, where he

lauded the remaining shards of the Voting Rights Act that he deigned to allow to exist after Shelby County and now he's fully on board with the majority in this case. Like, you know, it was only a few years ago. Like, why the difference, sir? And also stunned by the cravenness of allowing Sam Alito to write this opinion. Shout out to the colleague who told me, Shelby County was justified because of Allen v. Milligan. And that was only possible to write a decision like Allen versus Milligan in light of Shelby County. And I was like, what? Just beat your head against a wall. Anyway, I'm also disgusted with Congress, including the Democrats, because for years, civil rights advocates, black people have been saying that this was coming, that the Supreme Court was intent on dismantling voting rights and that they would stop at nothing to do it. And nobody did anything, right? When I sat on MS now and asked a member of the Congressional Black Caucus, how the Congressional Black Caucus plan to respond to this particular lawsuit, the answer was to file litigation. I was like, I was on there with you. I almost lost my rocker.

It's like litigation that will go up to this court to say. I'm like, is that the plan? That can't be the plan. But that apparently is the plan. And, you know, I just, I can't. Last night, this, we're recording on Friday. So Thursday night, I was at an event celebrating the centennial of the Schaumburg Center for Black Research in Harlem.

And the Schaumburg Center is an arm of the New York Public Library. And it's devoted to the preservation of black writing, art, research, and culture. and Senate Minority Leader Chuck Schumer was there and he spoke and it was literally all I could do not to stand up, turn my back and walk out. He spent nine minutes lauding the contributions of black people to this country and this culture after he spent the last nine years letting this court chip away at a law that Congress enacted and reauthorized for years and years and years. And in addition to that insult, he pronounced the name of Edwige Dantakot, the award-winning Haitian-American novel holist who was honored at the event. He pronounced it Edwidge, Dentiquet. And I was just like, sir,

read a book, read any books. And so I'm just mad at everyone. That's fair. Me too. I'm a bipartisan rager right now. Deservidly so. It was so clear that this was going to happen. I literally wrote it into the version of my book that came out last year, right? And then updated it with more confidence for the paper of effort coming out in June. Like, it was obvious, right? They were going to do this anyways. Okay. Is that that going over? Should we move on to argue? We should, but I do think that let's put a pin in the idea of like just five ranting minutes about Calais at the beginning of every episode, at least for the next few weeks. Or at some point in an episode. It doesn't have to be the beginning.

Okay. It's just a recurring segment. Do you remember when we were talking about like how would we revamp after Trump 2.0, like what we would he do? And like I suggested maybe a recurring segment called douche of the week where we just talk about someone we hate it. And you were like, it's kind of a downer. So instead we decided to do favorite things. Maybe it's time for douche of the week. I like the direction.

I just, I also like the focus on Calais. I just think, that decision of the century. Exactly. Like, that decision needs to become part of the lexicon, as we were suggesting. I mean, we got a bad decisions tour coming out.

Let's just put it on the shirt. Put it on the shirt. That's fair. That's fair. Update the shirt. Okay. Okay. All right.

So stay tuned for the next installment of that, whatever it turns out to be. Strict scrutiny is brought to you by ORAFrams. ORAFrams is here to help you put together a magical mother's day that allows you to capture and relive mom's magic every day. I'm a dog mom, which means I love looking at photos of me and my baby girl. Some of them are photos my partner took, usually where I'm manhandling or mom handling her into a pose, but I also love some of the selfies I've been able to capture with her, where she's even doing an ear toss or a hair toss.

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That's A-U-R-A-Frams.com promo code strict. Support the show by mentioning us at checkout. Terms and conditions apply. Strict scrutiny is brought to you by Cook Unity. I'm a foodie, but that doesn't always mean the fancy schmancy stuff. I'm basically obsessed with Kava. Yes, that's the fast casual chain. And always crave their hot Horissa chicken and lamb meatballs and garlic sauce and

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Go to cookunity.com slash strict or enter code strict before checkout to get you. get 50% off your first order. That's 50% off your first order by using code strict or going to cookunity.com slash strict. Now we're going to shift to argument recaps. So the day the Supreme Court announced that racism is over so that the Voting Rights Act would no longer prohibit legislatures from discriminating against black voters so long as black voters tend to vote together for Democrats, the court also got to noodle over whether the president's statements about excluding people from shithole countries, making horrific lies about how Haitian immigrants are eating cats and dogs and general talk about the blood of the nation were racist. The Solicitor

General says no. So yes, the court heard argument in Mullen v. Doe and Trump v. P.O. As a reminder, these are the challenges to the revocation of temporary protected status for Haitian and Syrian nationals. As we mentioned in the last episode, and as Leah just alluded to, the president and senior administration officials have maligned and vilified Haitian immigrants in particular and apparently decided to cancel TPS for Syrian nationals based on extensive analysis reflected in a single email and, oh, maybe Brett Kavanaugh's musings about sort of the geopolitics of the new regime in Syria. Seems like that is what drove the administration. So the question is, can they do that? The government is arguing that it can. The argument proceeds as follows.

First, that the revocations are unreviewable, meaning that the executive branch can do whatever it wants and any congressional limitations on revocation and protections for TPS holders are absolutely unenforceable. Do you know what that's giving? Monarchy. Yeah. Yeah. Yes. The government is also arguing that the president definitely totally had reasonable, rational, and unbelievably race-neutral reasons for ending these programs. So nothing to see here, folks. Top lines on this argument, especially coming right after the announcement in Calais. This was Rich. This is rich. Wednesday was a lot. It was. In this case, the TPS cases, it's possible the Solicitor General may have overstepped just by advancing extremely broad theories about the bar of

judicial review, which might provoke the court to preserve a narrow, albeit limited and deferential category of claims that can be reviewed. The plaintiffs are arguing procedural claims and constitutional claims can be add to that. There were a few questions for the lawyer challenging the revocation of TPS for Haitian nationals. At the same time, I wasn't exactly sure who the five would come from. You know, at times the chief and Barrett sounded skeptical, but they've done this before, only to go full throttle on what the federal government is selling. Yeah. So I actually felt modestly optimistic about the chief and Barrett. I mean, they were both mixed, but out of the gate, the chief pounced on the government for like overreeding or seeking

to extend without copying to it, Trump versus Hawaii. And I did think Barrett was reasonably sympathetic, though uneven. I heard nothing in her questions that, like, alluded to this obviously explicitly, but I did wonder whether the fact that she has two adopted kids from Haiti might make her somewhat less likely to just dismiss the president's vile words about Haitians, but, you know, hard to know. The challengers were also- Is that the same president to whom she introduced her kids when she was nominated to the Supreme Court? Very same, yeah. Very same. Okay. And, I mean, I think she probably hung out with at the state dinner last week. I don't know, but probably did. So yeah, she hasn't shown that much interest in distancing herself from him, but hope springs eternal.

There's also the fact that the challengers were like, I thought, very cautious and kind of measured in their asks. They were very insistent that executive branch gets tons of deference here. No one is asking the courts to decide whether to keep or terminate TBS, just that there is some minimal process beyond the non-existent process that was followed here that the law requires. But then there was this weird thing where at moments, the fact that the asks were like pretty. small were for Barrett and Kavanaugh maybe reasons to rule against the challengers. Like, if you're not asking for much, then, like, why bother? Um, which I found, like, maybe I put my head for the Constitution. Why should we bother? If they get to the same outcome. Anyway, no, completely. Anyway, I did sort of feel like heads. I win, tails you lose. But again,

I felt like hopeful that there may be a narrow but obviously meaningful loss for the administration here. Anyway, that's my top line. Yeah, they were basically like, go big or go home. either. Right. Yeah. And we know you're going to, we're going to send you home if you go big. So like, again, that's as we went to go big and go home. Right. Yeah. You know, so obviously one of the arguments that the challengers are making here is a procedural argument that, you know, yes, the executive French can do this. They just have to follow these specific procedures. This is a species of the kind of argument they made in the DACA rescission cases that were heard back in Trump one point. Now, I think it was around 2020 when this podcast was getting going for the

the first time. Those arguments were obviously availing in that context back in 2020. I just wonder if they're going to be as deferential to this administration as they have been more recently or whether we're going to go back to that 1.0 where they're just like, listen, just do government right. Like you've got shitty instincts, but just do it right. And who knows? Another ongoing theme that was sort of surfacing there was, you know, what the fuck is Congress for? What the fuck are for? Do you need Congress or courts when you are the unitary executive? I mean, they genuinely seem to be grappling with the fact of their own obsolescence, which was interesting. Another observation was that the race talk in this case was so off-putting and especially so given that the argument

occurred right after the court declared racism dead and buried in the announcement of the Kilae opinion. So I very much appreciated both justices. So to my and Jackson staying on the administration's neck about its arguably racist statements regarding immigrants and the countries from which they arrive to the United States. I mean, just a lot to go on here. And I know we should talk about this and play some tape, I think. Yeah. So we wanted to share the exchanges between those two justices and the lawyer for the federal government just because they were otherworldly. So let's play those clips. We have a president saying at one point that,

Haiti is a, quote, filthy, dirty and disgusting s-whole country. I'm quoting him, and where he complained that the United States takes people from such countries instead of people from Norway, Sweden, or Denmark, where he declared illegal immigrants, which he associated with TPS as poisoning the blood of America. All the statements that they cite, as to the secretary and asked to the president, And obviously there's an issue there about which one you're going to weigh more heavily. None of them, not a single one of them, mentions race or relates to race anyway. All those statements and contexts refer to problems like crime, poverty, welfare dependence, drugs, drug importation. What about poisoning the blood of Americans?

If you look at those statements and context, again, they're clearly talking about problems. What about bad genes, bad genes, quote unquote? Again, poverty. Also, not racially. They presented them wrenched from context. You can look at each one of those statements. They're talking about problems of crime, poverty, welfare dependency, again, problems that have been emphasized again and again by not just President Trump, not just the secretary, but many others who favor a tough immigration policy. And the position of the district courts here.

The position of the United States is that we have to have an actual racial epithet that we aren't allowed to look at all the context. Wow, that was quite a super cut. What a mashup. I mean, this is about welfare and poverty and... Yeah. Just say welfare queen. Just say welfare queen. Right.

Like, do you think you're saying things that indicate you don't have racist views? The president doesn't have racist views? If he's saying people from those countries are more likely to commit crime and be poor? Like, I don't understand. Yeah. I mean, I think he had to take that position, and it was horrifying and almost laughable. two observations about that. One, we'll talk just briefly about a case involving the alien tort statute and the Torture Victim Protection Act, but Jackson and Sotomayor, and their kind of

continued insistence on saying what the case is about, like, even when their colleagues want to retreat to, like, abstract legalism, like, their colleagues want to talk a little bit about the APA and, you know, kind of deference to the president and the executive. And they're like, here are the words he said with his mouth or on truth social. Like, let's listen to them. And in the same way in the case involving this alien tort statute. There's all this sort of abstraction about third party and secondary liability. And Sucho Mayor at one point is like, we're talking about allegations that a government with the help of this U.S. corporation designed a torture scheme and like tortured people. And you can just hear in the room they hate when these,

when Suchamio and Jackson like remind them what these cases are about. And like, I love it so much. It's so important. I hate it when women of color bring up all of the quasi- I racist statements I make. Yeah, completely. Like, I wasn't in the room, but I am sure that they were all like, why do you keep saying this stuff? It's like, that's what the case is literally about. Like, so rude. So rude. Exactly. Yeah. Anyway. And, you know, the federal government is to say them. The way it's just stop discrimination on the basis of race is to stop talking about discrimination. In these hallowed halls, basically. Anyway, and yeah, I was just sort of especially going that the federal government tried to defend all of this on the same day that. Justice Alito announced that racism is over in Calais from the bench. And I don't think we've said this, but Kagan dissented from the bench, and it was apparently pretty epic. Can we go back and take a few beats on the shamelessness or the lack of vergonia of one Samuel

Alito? There was this very extended disposition with the lawyer who is representing the Haitian nationals in which Justice Alito amused about whether he would view certain immigration policies as directed against white or non-white individuals. And he asked about, in addition to Syrians and Turks, whether Greeks and Italians might be considered white or non-white. And the lawyer basically said, sir, I don't know who needs to hear this, but there was a time when Italians were not considered white. And then Justice Alito responded with this.

A really large, a really broad definition of who's white and who's not white. As I said, I don't like dividing the people of the world into this. these groups. That is the man who says it's racist, racial discrimination to comply with the Voting Rights Act and not racist to discriminate against black voters if you're discriminating against Democrats, saying he doesn't like dividing the people of the world into racial groups. It's so much easier to divide them by partisan affiliation, Leah. It's race neutral and, you know, much better that way. Just whatever. Just insane. The other one that I loved, John Sauer had some real bangers in this argument, I have to say, but this is the one I really loved.

He said with a straight face, this is the Solicitor General of the United States. John Sauer said with a straight face to Justice Brett Kavanaugh that the president of the United States revoked TPS for Haitian nationals in order to reverse the brain drain from Haiti. So Sauer said, quote, there's this kind of talent drain out of Haiti. That what? That's the Trump administration, folks. Like the Trump administration is literally revoking TPS, a policy that was created to help the people in this earthquake ravaged society come to the United States and live better lives. They're revoking it in order to help Haiti retain its natural pool of native talent. That's foreign policy. That is presidential, folks. The sort of balance

faith continues apace. So in an argument of many notable exchanges, and I did think the kind of Justice Alito asking about Italians, and the attorney from the podium, I thought, did a very nice job basically saying, yeah, 120 years ago, Southern Italians weren't considered white. And you would think that would give Sam Alito a little pause. And yet instead he was just like, I'm annoyed by this whole thing. That's the second time he's been called on the history of Italians in America and their relationship. Last month, birthright citizenship. Yeah. Yeah. Yeah. Yeah. And yet it's not really penetrating, is it? But you know what, guys?

It's time to talk about Clarence Thomas. Okay, so right. Yes, he would go further. He would go further. So, you know, he always wants to go further than his colleagues. And with the lawyer representing the Haitian nationals, these plaintiffs are unsurprisingly challenging the revocation on the ground that it was motivated by racial animus, right?

See all the statements that we were just adverting to. And also, like, a desire to discriminate on the basis of race. And Clarence Thomas seemed to take issue with the idea that the federal government might be prohibited from discriminating on the basis of race, right? Like, just to say that again, not sure. Thomas isn't so sure that there's anything unconstitutional about government discriminating on the basis of race if it's the feds.

Just sit with that. During the seriatim portion of the argument, Justice Thomas repeatedly asked the lawyer how the lawyer's equal protection, race discrimination claim worked, or rather whether it made any sense. And the gist of Thomas's question was essentially that the equal protection clause appears only in the 14th Amendment, which applies only against states. It doesn't apply against the federal government.

There isn't an explicit guarantee of equal protection in any part of the constitution that is applicable to the federal government. However, as I note in the U.S. Constitution, a comprehensive and annotated guide for the modern reader, on the very same day the Supreme Court announced its decision in Brown v. Board of Education, it also announced a decision in Bowling v. Sharp, a companion case, and it struck down segregated schools in Washington, D.C., a federal territory, and it did so on the view that the Fifth Amendment, which applies to the federal government, contains an implicit guarantee of equal protection. And this is all discussed here. Weird that Justice Thomas doesn't know this, or if he does know it, whether it is an invitation to other people to challenge or question the status of Bowling v. Sharp and this implicit guarantee of equal protection in the Fifth Amendment. You know what so pesky precedent. And books and the Constitution. As we keep saying, by the book. Equality.

The U.S. Constitution. Comprehensive and annotated guy for the modern reader. Send one to one first read. I know a friend who could use one. Send like six. Not like, but exactly six, as turns out. So at one point during the oral argument in the TPS cases, Justice Kagan's voice, like kind of cracked. She sort of started to cough.

And she said, I'm sorry, I'm losing my voice. And it was like a couple, it was sort of an extended like kind of period where she's trying to talk and then just kind of keeps sort of losing it. So that might have been the result of her extended filleting of the Kale majority by reading portions or, kind of summarizing her Kalea dissent from the bench. I mean, I don't actually know if she read portions of or summarized her dissent from the bench since for reasons, and by that I mean like just reasons they haven't told us. They don't broadcast the audio of the opinion announcements despite now, you know, real-time broadcasting the arguments themselves. It's insane. It's just a thing they do because they can, but just not share that audio with us. Anyway,

we know she read her dissent, but I am really eager to actually get that recording and it's just insane that they make us wait. So there was another. exchange I wanted to highlight. So one important precedent for the challengers is New York versus Commerce, the case involving the challenge to the addition of a citizenship question on the 2020 census. The lawyer for the challengers... Here, by the way, the Trump administration said they needed the information to enforce the Voting Rights Act, right? Which I just argued in favor of dismantling and nullifying, just reminders, reminders all around. Receeds. Receipts. Yeah, yeah, sort of infinite regress. So anyway, here is that exchange with the attorney for

the challengers. I wouldn't change a word of commerce, Your Honor. I wouldn't either. Yes. Okay. So I just, I don't know what you guys made of this. Ilon is a wonderful lawyer. We've had him on the pod before and I thought he did a great job in this argument. I will just say that I personally would change lots of words in New York versus Commerce in that it's a kind of incoherent opinion that both says it's not arbitrary and capricious for the government to add this question, but then because the reasons given were pretextual or controlled. the addition has to fall sort of separate from a traditional arbitrary and capricious kind of analysis. Anyway, it's a puzzling opinion I've spent a lot of time with, but I understand when you're arguing in front of them, you have to say that their opinions are perfect and you wouldn't change.

You're perfect. You're beautiful. You're doing amazing, sweetie. I mean, look, but this goes back to what Melissa was saying at the outset, which is we really will find out whether these were just entire one-offs, both the census case, which the first Trump administration lost and the DHS rescission, you know, the DACA rescission case, which the first Trump administration also lost. You know, either of those cases like stand for a principle about how government has to do things or they don't. And I think we're going to find out here. One final note. I think this is bubbling up in the lower federal courts for sure. But we definitely saw a glimmer of it here at the court in this argument.

And that is judges here, Justice Sotomayor, using the unitary executive theory against the administration, which, as we know, is obsessed with the unitary executive theory. when it suits them. So let's hear this tape. I'm not quite sure in not so long ago you came in and said that every executive officer has to be answerable to the president. So the president's statements have to be attributable to its executive officers, to the secretary. I don't see how you can take both positions. Either an executive follows the president's orders or it doesn't. That was great. So we will briefly touch on the rest. Well, not that whole thing was great. Just Sotomayor was great. Not the argument. Although, as I said, I am optimistic, modestly. But once again, Sotomayor, great question. Strict scrutiny is brought to you by Books. Mother's Day is coming up. I've been thinking about mother figures and how much they do for all of us. Handling teenage angst. That's basically a full-time job. Pretty thankless one at that. So too is managing kids' calendars and shutt them back and forth. So, yeah, Mother's Day math. matters. You got to get it right. And the easiest way to get it right? Bookes. That's short for bouquets. I'm sending mom flowers from the Bookes Company, and I got you 25% off so you can send

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at the end of the show, but we wanted first to touch on some more legal developments because there have been a lot of them. First, I know you guys, guys did not have this on your bingo card for 2026, but it's time to talk about ballrooms and their implications for national security. I know you weren't expecting it, but ballrooms and national security are actually co-extensive. And that is because on Saturday, April 26th, there was a terrifying incident in which a gunman appeared at the White House Correspondence Association dinner at the Washington Hilton and shots were fired. Thankfully, it seems that no one, other than a gunman, was injured. This was a dinner where, for inexplicable reasons, given their disdain for the First

Amendment, the president and members of his administration were invited. And so the fact of this gun violence episode obviously had real implications for the safety of those officials. Right. But the last thing Melissa said that they were invited and not the hosts of this dinner is actually important for sort of what comes next. Because in the aftermath of the shooting, the administration began making the truly absurd claim that the shooting supplied evidence for why the president needed this 90,000 square foot ballroom whose construction is underway at the White House because national security demanded it. Right. So this is what they immediately jumped to. Here is Carolyn Levitt making this claim. The White House ballroom project is not just a fun project for President Trump, like you will read in the media. It is actually critical for our national security.

Here is Lindsey Graham. going at. If you don't think $400 million of taxpayer money is a good investment to create a secure facility at the White House where the President of the United States, the Vice President, the Cabinet, and people from the public can come and, you know, have a meal and gather without what happened Saturday, then I disagree. This is the number one job of the federal government is national security. The number one job of national security, I think, would be to protect the commander-in-chief and to have infrastructure under the ballroom

that is very national security-centric. And apparently the president thought those comments just slapped because the Department of Justice filed a motion to this effect. You should read the entire nine pages. We will just provide you some excerpts. Quote, the National Trust for Historic Preservation

is a beautiful name, but even their name is fake. That's all caps. Because when they add the words in the United States to the national trust, It makes it sound like a government agency, which it is not. They are very bad for our country. Read Melissa's book. The National Trust for Historic Preservation isn't even in the Constitution. So what even are they?

Okay, wait, let me read another quote. This did not deter them, the National Trust, because they suffer from capital T Trump, capital D derangement, capital S syndrome, commonly referred to as TDS, as noted by Democrat Senator John Federman of Pennsylvania and are represented, the challengers, that is, by the lawyer for Barack Hussein Obama, Gregory Craig, who will note is now at the law firm Folley and Lardner. One more quote, in the long and storied history of the White House dating back to 1791,

Congress has never dictated or tampered with the zoning, permitting, or architectural aspects of any capital P project, especially one being given, all caps, free of charge as a gift to the country. This insane brief was signed by the acting attorney general, Todd Blanche. It just feels like this performative objection. It's like, I will literally do anything for you, sir. Is this the exact word.

This is your audition for America's next. I have no shame. I will literally do anything for you. And honestly, having read that, I believe it. Sorry, wait, there's more. Wait, do you want to quote one more? Okay, I'm ready. This is my time to shine.

Oh, actually, this is a good one. This is my audition. All right. If any other president had the ability, foresight, or talents necessary to build this ballroom, which will be one of the greatest, safest and most secure structures of its kind anywhere in the world, there would never have been a lawsuit.

But because it is Donald J. Trump, a highly successful real estate developer who has abilities that others don't, especially those who assume the office of the president, this frivolous and meritless lawsuit was filed. Again, it's called, all caps, Trump derangement syndrome. On top of everything else, this project is a gift to our country from President Trump and other donors. It is free of charge to the American taxpayer. Who could ever have. object to that. What do you have to say, bitches? Who can object to that?

Yeah. This is a bonger. So it reads like a truth social post. It was actually posted verbatim by Trump on Truth Social as a post, which, I mean, why bother with the interim step of the filing at all? I don't even know. I mean, the real derangement syndrome, like, wow. reflecting on this, one wonders, would Louis XVIth and Maria Antoinette have died if they had had a ballroom? Folks are asking this question more and more.

Let them eat disco balls, said Maria Antoinette. Exactly. More fucking around and finding out dispatches we wanted to talk about were the other federal courts holding the unitary executive theory against the administration and what we're calling fuck around and find out unitary executive edition. Okay, so let's take through a few pretty kind of interesting. interesting developments here. So one development came from the district judge in Florida, Judge Kathleen Williams, who was overseeing Donald Trump's case against the IRS. This case seeks $10 billion with the B dollars from the IRS and Treasury related to the disclosure of Trump's tax forms. And the judge questioned if she had jurisdiction over the case or whether

it would have to be dismissed. And if you're a constitutional law professor, you kind of loved this opinion because it was like, muh, jurisdiction 101. The judge wrote, quote, A key characteristic of the case or controversy requirement is the existence of adverseness or a dispute between parties who face each other in an adversary proceeding. Typically, adverseness is found in a situation where one party is asserting its right and the other party is resisting. But, she continued, in the instant case, although President Trump aviors that he is bringing this lawsuit in his personal capacity, he is the sitting president. And his named adversaries are entities whose decisions are subject to his direction.

Oh, snap. And the court then cites some of the executive orders invoking the unitary executive theory. If it's so unitary, it can't be adverse, bitches. I don't make the rules. It was great. Short, like, very punchy. Yeah, it was great. And sort of another development kind of related came from a district judge in New York,

Judge Furman, who is overseeing Maureen Comey's case challenging her removal from the U.S. Attorney's Office. She's a long time, very respected federal prosecutor. Her father is Jim Comey. Judge Furman found in Maureen Comey's case that he did have jurisdiction. This is a case challenging her firing. And he says that it did not have to be filed as the federal government claimed before the Merit Systems Protection Board, the agency overseeing the civil service that Trump has hobbled and asserted control over.

The judge found that federal court, not the MSPB had jurisdiction over the case because, get this, the president invoked his Article 2 power as the basis for firing her. Quote, Comey's case does not fall within the purview of the Civil Service Reform Act's scheme because she was fired pursuant to Article 2 of the Constitution, not pursuant to the CSRA itself. Defendant's sole reliance on the Constitution rather than the removal provisions of the CSRA places Comey's case outside the universe of cases that Congress intended the MSPB to resolve. Sometimes you got to read it. Too legit to quit. You do read that for the articles. read the Constitution for the article.

I didn't say I said that. Yeah. But you live by the unitary executive. You die by the unitary executive. I'm not even assured if I am allowed to say, die in the same sentence as executive, or if I will be indicted. You're not writing it in seashells.

No seashells. No seashells. Okay. Great. Thanks. Good to know. Great tip. Also, the opinion by Judge Furman has a nice site to Kate's partisanship creep article in there.

Always read the footnotes in addition to the articles. So I don't want to characterize these judicial opinions is trolling. They're much more dignified, reasoned and elegant than that, but I do love the energy. Okay, as promised, let's briefly do the other argument recaps. And let's start with Chattray v. United States, which is the Fourth Amendment geoffence warrants case that we briefly previewed last week. So as we said to the kind of Fourth Amendment stands, this is a really important Fourth Amendment case involving the constitutionality of this novel type of warrant called geoffence warrants. A geoffence warrant lets law enforcement get the identities of self-defense.

users in particular areas or locations at particular times. They basically draw a kind of virtual fence around an area, and then they seek a warrant to require a tech company to search its data to ID users within the geofense at the time of the crime. But then, as is the case here, the government sometimes conducts additional information gathering about the people it identifies. So here, after identifying some individuals, the government then requested location data over a longer period of time. So in this case, after there was a robbery of a federal credit union during which a robber apparently was talking on his cell phone, law enforcement asked Google for cell phone records of everyone in the vicinity within one hour of the robbery. And Google has this data because millions of people have a feature called location history turned on in Google Maps whether or not they realize it. So after Google returned an initial list of people within 150 meters for 30 minutes before and 30 minutes after the robbery, law enforcement sought and didn't get an additional warrant for this step.

information about the movements of certain devices for a longer two-hour period, and Google complied with that request. Then, again, without seeking an additional warrant, law enforcement asked for subscriber information for three devices. One of those devices belonged to the petitioner. Based on the evidence derived from the geoffence warrant, the petitioner was charged with armed robbery and firearms possession. I think it might be helpful, and the court seems inclined to go in this direction, to think about this case as involving a few different steps or actions. One is the geofense that is seeking information just about who is in a given space at a given time. The second is the subsequent information collection, seeking the location movements for some number of people for a period of two hours. And the third is the request for subscriber information. Yeah. And it seemed like the court was not inclined to say there was a reasonable expectation of privacy at step one, sort of of the kind of the geo fence warrant. So the company is asked send us all the people in this area at the time. And maybe you as one of the people who was in the area. don't actually have a constitutionally cognizable interest in not having that information that you were there around this time disclosed.

So maybe the court is going to go or sort of kind of focus its attention on the second and third step of the process that we just walked through. Which is interesting because requiring more particularity at different steps of the process would not necessarily be an insignificant change in Fourth Amendment doctrine. At least, you know, once you cross a certain threshold of probable cause reasonable suspicion, there's kind of no variation within there. maybe not an unwarranted change, but still a change. There was real discomfort, though, with the government's argument that there was consent or voluntary disclosure of the location information here. The idea was that the people didn't turn off the location tracking information, and therefore they had consented to this kind of treatment.

As the justices noted, a lot of people find that useful to use, the location tracking, you know, like find your phone, whatever. The justices were also reluctant, it seemed, to rely on the terms of service. That is, where Google tells users that it. complies with government requests for information. And the point was that even if they said that it mattered, that could potentially allow the government to get access to email and whatnot. And as we mentioned, it seemed like the justices were interested in the idea that at different steps of the process, the inquiry here might change for purposes of the Fourth Amendment. And

Justice Jackson was really keyed in on this early on in the argument. Something that came up a bunch of times in the argument was this analogy that the petitioner had offer that these warrants are like directions to go through everyone's storage locker. So you have like a big storage site and like tons of storage lockers. Could the police just ask the owner to search everybody's storage locker for like a gun? And Justice Kagan liken the steps in the geoffence process to the idea that first the government looks at a bunch of glass front lockers to see if they have bags. So right, imagine not an opaque, but like a see-through door to the locker. And then the government feels the outside of the bags and then they open the bag. And like

those are distinct steps in the process. Yeah. So the The federal government, again, here, as in the TPS case, really did itself no favors in the argument. They poo-poohed several justices' concerns that geo-offence warrants might allow the government to surveil people at sensitive locations, such as churches or homes, which are supposed to be entitled to special protection under the Fourth Amendment. And this seemed to potentially peel off both the Chief Justice and Justice Barrett. It was interesting. So you had the kind of valence of the examples given. So, right, you had churches, you had homes. Abortion clinics came up a couple of times as well.

So different justices might have been differently moved. by imagining the invasion of privacy that might occur at different kinds of locations. Kavanaugh seemed to be kind of on the other side with his like but crime logic, which is ever present. And you can sort of hear that in this clip. The local government amicus brief and the 31 states amicus brief, which has a huge spectrum of attorneys general on that amicus brief, which I think warrants note, talk about the practical consequences, not being able to solve murders. A lot of, you know, huge percentage of murders are never solved, for example, in violent crime. You know who also seemed to be on one? Justice Alito seemed to be very triggered that the court might rule for a criminal defendant. And so he was putting in work to find a way to avoid that unpalatable outcome. Take a listen. Well, we can affirm on any ground that would support the judgment and was raised below. And the good faith exception qualifies on all those points. So the fact that the court did not grant certiorari on the

the good faith exception does not preclude any of us from relying on that? I'm not sure I agree. I mean, the court specifically declined certiorari on that question, so we didn't brief it. And we raised in our cert petition that we'd like the chance to argue that the questions are intertwined and in view of a holding on the Fourth Amendment issue, we'd like to litigate the good faith issue. The court didn't grant certiorari. We didn't brief.

The government did have a section of the respondent's brief addressing the good faith exception, but adhering to the court's decision not to grant certiorari, we didn't respond in the reply brief, except to ask. for remand. Well, that was your choice. The court did not grant certioria. We were reluctant to brief a question on which the court specifically declined. Well, you're an experienced advocate. You understand that we can affirm on an issue that was raised below and would support the judgment. This is not how Supreme Court practice works. Like, a party can't just decide. We're going to brief and argue this separate question you didn't actually grant cert on. It's just not how it works. Like,

they would go nuts if someone did that. They dismissed cases for that. Completely. I couldn't believe just how Craven it was. I want to find a way to get to the outcome that I want. And so I'm going to say something I would never in other circumstances say, which is you should have ignored our decision to take but not take certain parts of this case and just like briefed everything anyway.

Yeah. So Adam Eukowski definitely won that exchange, I thought. Yeah. So the court heard several other arguments that were not going to fully recap in the interest of time. This is just a crazy week. also not able to cover Pete Kegseth, Kegsbroth, whatever, his testimony. I did a short YouTube reaction video on the Comey indictment. Like, there was just so much going on this week. But at the court, the court heard Monsanto versus Dernel, which is about preemption of state

tort suits for failure to warn claims about when and whether under the federal insecticide fungicide and rodenticide act. I'm sorry, FIFRA is my favorite federal statute. I mean, it's a nice one. It's a nice one. It's a nice one. It's great. Yes. The oral argument in the case was hard to read. It could end up being an anti-administrative screed for the plaintiffs, or it could be a ruling for corporate defendants whose products allegedly cause cancer, really difficult for this court to choose between those two options. This is a hard one to know where to root. It really was. Cross pressure. Cross pressure. As Kate alluded to, there was also Cisco v. Doe. There, the court appears inclined to limit the scope of liability under the Torture Victim Protection Act and Alien Tort Statute, because why allow torture victims the opportunity? to allege U.S. companies aided and abetted torture. Why not? The court also heard the first patent case.

It's heard in a few years, Hickma Pharmaceuticals versus Ameren Pharma, where, just based on my read of the oral argument, it sounded like the court was going to reject one theory of liability for induced infringement against certain generic drug manufacturers. Just products are approved for both patented and unpatented uses. All right. So finally, let's turn to opinions. We've obviously covered Calais, although we're going to return to it again and again. But we also got the court's opinion in First Choice Women's Resource Center versus Davenport. The case about whether the plaintiff, a crisis pregnancy center, had standing to challenge an administrative subpoena issued to them by the state of New Jersey, where the state sought information that would help the state determine whether the organization was in compliance with state consumer protection laws and included in that information that would have been produced pursuant to the subpoena was identifying information about donors. The court held that the organization had standing to challenge the administrative subpoena in federal court.

The state had argued that there was no risk of injury because the subpoenas didn't generate any legal penalties unless and until the state convinced a state court to enforce them. The court, thankfully, did not second guess the state's reading of state law that those subpoenas are not self-executing. The court instead said the risk or prospect of enforcement was sufficient to cause injury. The opinion was written by Justice Gorsuch and it was unanimous. This result was not surprising given how the oral argument went, although as we talked about with the New Jersey Attorney General in our episode recapping the argument, the ruling does really open up the ability to challenge thousands and thousands of administrative subpoenas that are routinely issued by state and federal governments all the time, which has the potential to overwhelm federal courts and jam up legal enforcement. But as we suggested, this outcome might reflect a new reality of the intense politicization, weaponization of law enforcement in the Trump administration. where the justices may have been kind of forced to recognize the extent to which the government uses its investigative powers, including administrative subpoenas, for abusive ends and therefore may have wanted to open up a path to challenging them earlier on in federal court.

I mean, this last week we got the indictment of Jim Comey. We learned that maybe the investigation into Federal Reserve Chair Jerome Powell had ended, although Carolyn Levitt suggested maybe it hadn't. And there was, you know, has been reporting about how the Trump administration has issued administrative subpoenas to people who criticize the administration or question them. So it's been a lot, and I think the pace is probably going to continue. So let's leave you. Well, we'll get to favor things, but first we've got two clips without context. We're going to play for you. Here is the first one from Chattree, the Geoffense Fourth Amendment case. Counsel, I'm sorry, are you through?

I'm sorry. I want to go back to Justice Barrett's. If you're not through, Sam, I thought you were through. Go ahead. Let's go back to Justice Barrett's question. If you're not through Sam, this was, you know, please be through, please, please, please just back down. But that was probably just wishful thinking. Yeah, and here's the second clip without context, this one from Cisco. Justice Barrett, if I could just pause for a moment.

I've been notified that there will be a flyover of four planes at 1122. and I just want to announce that so people aren't alarmed or told the noise might be big. I don't know why they didn't check with me, but... Justice Barrett. This caught my attention because we've joked about them using the Shatter Docket to intercept missiles that would destroy an asteroid headed for Earth, and it sounded like the Chief Justice was maybe potentially opening that door or leaving it ajar. Okay, so favorite things?

All right, let's do it. You start. Okay, so Melissa's book. the U.S. Constitution, comprehensive and annotated guide for the modern reader. Also, Ariana Grande announced a new album. I'm so excited at end of July. And I'm going to see the NOAA Com concert. I got tickets. So those are good things. Also, two Voting Rights Act pieces on the opinion I wanted to flag here. Sherilyn Eiffel's post on her substacked. Scotis drops the other shoe on the Voting Rights Act was phenomenal. As was Rick Hossens, the slaying of the Voting Rights Act by the Coward Samuel.

Alito at Slate. Yes, that's the actual title. And then a YouTube over at Jamal Bowie's channel takes. This one was, I think, inspired by the Vudan Rights Act decision. And this one is entitled, the Supreme Court is corrupt. This is what we can do about it. And it really walks through the options of Supreme Court reform. Oh, that's great. Yeah. I want to second, Melissa's book and also the merch. Again, I'm not wearing the T-shirt, but I got a great mug. At some point, I'll have the actual physical book. And then I will flash it for you. I'm finally reading the Loneliness of Sonia and Sunny, which many, many people have read and loving it. Most people did, but I think I've heard somewhat mixed reviews, but so far really love it. I mean, I recently

read Ben Lerner's new novel transcription, which I'm thinking about a lot. I felt differently about it at different points as I was reading it, but highly recommend it, although I didn't always like it, and I'm really glad I read it. Yeah, that's all I got. All right. It was kind of a week. It's a big week, and I just want to thank all of my mom friends who we came to We had a big kid event this last weekend, and we all came together, and I just want to shout out those ladies. They are absolute bosses, and we did that. So thank you, ladies.

I am reading yesteryear by Caro Claire Burke, and it is so fucking satisfying, Teresa. So the premise is about, like, one of these trad wife influencers who has, like, you know, like a ballerina farm, I guess, and then suddenly finds themselves transported back in time to the actual. actual frontier. And I just kind of love it. Like, you want to be an anti-faxer? Okay, have some measles. Try that. See how it works. So I'm actually kind of enjoying it. Speaking of fucking around and finding out. I love it. So really enjoying that book. I also really love many of the thought pieces that came out in the last two days around the decision in Calais. You mentioned Sherlin Eiffel's

fantastic sub-stack. I will also say last week, the Studio Museum honored Sherilyn. Eiffel and she just gave one of the most amazing and inspiring speeches basically telling us like this is not going to change in our lifetime but that doesn't mean we don't do the work like we do the work so that our children and grandchildren can sit in the shade of trees they did not plant and you know I don't know who needs to hear that right now but it's not the time to put your plow down you got to keep going and I appreciated that I also loved Adam Serwer's piece voters can be disenfranchised because yeah we're going to see that and I'm glad he's speaking truth to power. I also want to say just in terms of my favorite things, I'm trying to think about

what I can do in this moment as a black person, a black woman, watching these gains that my ancestors, people I love fought for, watching them just be rolled back. One of the things that seemed clear to me is that people are not going down without a fight. There's redistricting that is happening in Louisiana and Florida and the NAACP Legal Defense Fund and our friend of the pod, Jenae Nelson, are suing the fuck out of them. Yeah. And I love that. I love that they're taking the fight to them and they need our help.

So, you know, someone asked me like, what can we do? We can contribute to that. They need resources to be able to launch that litigation that is something tangible you can do right now. So if you can support that work, that's amazing. That's, you know, don't despair, help the people who are fighting, prepare for the next leg of this fight. Amen.

One other just note about Kalae, we're going to sandwich this. If you control off that decision for Purcell, you will not find a single mention. Who that? Right. Who that? New phone. Who this? Because that case says federal courts not supposed to change the rules too close to an election.

They did so, causing states to literally suspend and cancel elections. Quite close to an election. There's going to be a Neil Gorsuch decision a couple years from now. I was like everyone knows Purcell has been abandoned for lack of use. Only when, again, certain people are invoking it. That's true. That's true. All right, on that note, spring is all about fresh darts, new t-shirts, and terrifying

new reasons to call your representatives. The crooked stores Call Congress Line has been a bestseller since it launched years ago, and now it's available in new spring colors like butter yellow and chocolate brown. Plus, all the pieces got a quality upgrade so your favorites can stay in rotation even longer. So can I just say quickly, I was in Japan for my kids spring break a couple weeks ago, And I have in navy blue the call Congress hat with like the number on it. And it's a great hat.

And my kids are like, what if people in Japan start calling Congress? And I was like, that's fine. Why not? And actually, the number is just the number of the congressional switchboard. So it will direct your call to whatever representative you want to talk to, cajole, or yell at. So anyway, it's Chuck Schumer. It's Edwidge. Edwish.

Right. You can call about that. You can call about new voting legislation and anything else your heart desires. Anyway, honestly, it's, like, hard to do the first time and actually a lot easier and then kind of fun to do subsequently. So get the muscle memory of calling Congress. I love to call and just be like, so what's your plan about Sam Alito? Like, what are you going to do? I've never called with that with that query.

I think I should. I do whenever I, like, have some rage I like need to catch out. Yeah. No, I'll usually call if there's like something specific, but never just like a general Samolito rage call. That's interesting. Okay. Well, anyway, whatever motivates you to actually take the step calling your representatives has never been more important. So you can make spreading the word easier if you throw on the hat, the T-shirt, the Kroonek, like all of that.

Again, I guess in new colors is available at crooked.com slash store. So go there, shop now. And you yourself make three calls this weekend. All right. Heads up, New York and the greater tri-state area because you know what? Your favorite lovely ladies dissing the court, they're coming your way. That's right. you can catch strict scrutiny live at the historic Gramercy Theater on June 20th as part of the

Bad Decisions Tour. And it's only May, which means there's going to be a lot of bad decisions that we can talk about. Tickets are on sale right now. You can grab them at cricket.com forward slash events. I will just say they are going fast. So if you want to hang out with us, you got to do this. Like get on it.

It's going to be so hype. Like our live show in New York every year is always really dope. Yes, it is. It's going to be really fun. I'm excited. I mean, you know, we're not going to be in a stage set piece like Lily Allen, but it is going to be pretty badass. We don't know that for sure. We haven't even had the design meetings yet.

Walking out on stage with a Dwayne Reed bag. Maybe a Dwayne Reed bag. I was going to say a long drape of receipts with Sam Alito opinions printed on them that I can just like shred. But you'd wrap around yourself like a ribbon the way she does. No, I would shred it. I would shred it. I love that. Cool.

So we're working on the props, stagecraft, all of that, TBD. But you want to find out? Get a ticket. Struck Strutiny is a Cricket Media production, hosted an executive produced by Leah Lipman, me, Melissa Murray, and Kate Shaw. Our senior producer and editor is Melody Rowell. Michael Goldsmith is our producer.

Jordan Thomas is our intern. We get our music from Eddie Cooper and production support from Katie Long and Adrian Hill. Matt DeGroote is our head of production, and we are really grateful for our digital team. Johanna Case, Kenny Moffitt, and Eric Schute. Our production staff is proudly unionized with the Writers Guild of America East. And if you haven't already, be sure to subscribe to strict scrutiny in your favorite podcast app

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