Strict Scrutiny - Surveying the Wreckage of This Supreme Court Term

Episode Date: July 6, 2026

Melissa, Kate, and Leah take a look back on this Supreme Court term as a whole. The hypocrisy, the racism, the sheer stupidity... it's all here!Get 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]

Struck scrutiny is brought to you by Americans United for Separation of Church and State. It's everywhere right now, the celebration of America's 250th anniversary, and we're in the thick of it this month. Christian nationalists are using this milestone not to unite, but to divide. They're pushing the lie that America was founded to be a Christian nation, where just one religious movement gets to decide who fully belongs, instead of the real truth that America was founded as a democracy, committed to liberty and justice for all. The idea that America was founded as a Christian nation is propaganda. It's not patriotism. It's a dangerous lie meant to justify censorship, discrimination, attacks on public schools, assaults on LGBTQ plus rights, restrictions on reproductive freedom, and government favoritism toward one extremist version of Christianity.

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state separation in every area of life. And you can learn more about how you can support AU and how it protects everyone's rights at AU.org slash crooked. Mr. Chief Justice, please support. It's an old joke. When I argue, men, argues against two beautiful ladies like this, they're going to have the last word. She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet or for next. Hello and welcome back to strict scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Leah Littman. I'm Melissa Murray. And I'm Kate Shaw. And this is our term recap episode,

which means we will look back at the court's term and take stock. Technically, the October 2025 term isn't over. It will not be over until, October term 2026 begins. And given the shadow docket activity, which is always very, very significant over the summer, there will be plenty to keep the justices busy and probably us as well. I'll just say, I hope the emotional support billionaires understand that this will be a working vacation. Yeah, John Roberts is going to be working to finally come up with a way to reconcile slaughter and cook or maybe even settle on what the legal standard for cause is. Work, bitch. Firk, bitch. That said, listeners, since the court has finished releasing opinions in argued cases,

we think it's important to step back and analyze the bigger picture rather than focusing on particular opinions as we do during the regular term. As always, the court made this so difficult for us to do because they didn't release the final opinions until the absolute last day in June. And indeed, they consolidated some of the biggest cases right at the end. The one exception, of course, was Louisiana v. Calais, which it released at the end of April, just in time to throw the midterm primaries into chaos. But all the other bangers, those came out right at the end. Yeah. There was also the terrorist decision.

But all of that means that we are recording this recap only a few days after the court finally finished releasing opinions, which means this is just a first pass at surveying the wreckage of October term 2025. probably going to be circling back to this bad decision season as we brace for October term 26. But per usual on this term recap episode, we will highlight some themes, offer some roses and thorns in the process, and do our level best to try and ring at least a little bit of levity out of the shitstorm that was this term.

That's going to be hard. Honestly, things are pretty bleak. And we'll conclude by discussing our summer plans, or really rather, the podcast plans for the break. All right. So listeners, I think it's a lot. time to pour yourself a stiff Susan Collins and buckle up for the term recap. And I'm just going to say, this was such a doozy of the term. I don't think it's going to be a one cocktail kind of enterprise. So we have something else for you beyond the standard Susan Collins. If they want to

do drunk history, let's do drunk podcast listening. So when you've finished your Susan Collins, we have another summer cocktail for you. In honor of our ever-expanding executive, we also for this one. The Reflecting Pool. Thanks to the enterprising mixologists and listeners who came up with this one, the Reflecting Pool is a refreshing mix of rum, Blue Curacao, and Pineapple Juice. Obviously, you make this burst by coating your glass with the Blue Corosau. Make sure you procure this liquor through a no-bid process to ensure the lowest quality possible, then add a dash of rum and a healthy dollop of pineapple juice to give it that green tint. Garnish the cocktail with a blue fruit roll-up to mimic peeling paint. And if you're feeling especially,

especially adventurous, you might include a pinch of macha and blue spirulina because algae. I'm not going to lie. That sounds delicious. Ah, okay. It does sound refreshing. And for those of you who think that a second summer cocktail is unnecessary, our only rejoinder, and I think it's a very good one, is that if SCOTUS is going to do drunk history with the Constitution, or at least the Second Amendment, we all should be reaping the benefits of the founding frat boys' rich history and tradition. of getting hammered. So this is an invitation to you, listeners, let your freak flag fly. All right, bottoms up. And now that you have your preferred libations in hand, let's get started.

Before we lay out some themes that we thought emerged throughout the term, we wanted to first make a couple of points slash observations about just how bad things are. First, it struck me that none of us, literally no one, was surprised that the court overruled a near century-old decision, a decision that multiple Congresses and presidents have relied on since it was announced in 1935. And the fact that we weren't shocked that it was of no moment to us and to much of the mainstream media suggests how broken this court actually is. That's where our expectations are. This, of course, is a reference to Humphrey's executor, which the court may have overruled in a shadow docket decision earlier, or it definitely overruled in its final decision in Trump v. Slaughter.

Slaughter wasn't just about overruling a decision. It was about invalidating almost 150 years of practice in how our government is structured and functions. Slaughter held that because the president is the head of the executive branch and all executive power resides in his office, he may remove the heads of independent agencies whenever he likes, unless it's the Fed. As we said at various points in this term, the court was gunning for Humphrey's executor and the independence of administrative agencies. We knew this was going to happen. And the fact that this, again, was both predicted and predictable, gives you a sense of just how broken things are. I'll offer another point here. We really need to play out the implications of the fact that the Supreme Court

divided five to four on the constitutionality of the birthright citizenship executive order. And I'm just going to say that again, five to four. I know that there are some people in the media and Supreme Court appellate lawyers who want to sane wash it and say that this was a six three decision and anyone who calls it a five to four decision is doing bad fear mongering. There are four of this court that believe that the Constitution does not say what it says, that Reconstruction did not do what it did. And that's honestly a little too close for comfort, at least for me. This was a five to four decision. Don't let anyone tell you differently. Yes, six to three, that they can't do this with this executive order, but not that they can't do it at all and not that

the Constitution means what it says in plain language. There are four people who are like, I don't think so. Right, exactly, because four justices said the executive order was not unconstitutional in its entirety. That is the five-four split, even though six justices concluded the order was illegal. Not going to rehash everything here, but plain language of the 14th Amendment provides that persons born in the United States and subject to its jurisdiction are citizens. The challenged executive order insists that some people born in the United States are not citizens, specifically, those born to undocumented immigrants or people with temporary legal status. Executive order clearly and obviously contradicts the text of the 14th Amendment and also this

country's history, precedent, and longstanding practice. So the upshot of all of this is that this court divided five to four on whether the Constitution means what it actually says and whether this president with an assist from the court can sua sponte wipe away a signature feature of the post-bellum American constitutional order. again, the postbellum constitutional order to which I refer is evinced in the reconstruction amendments. These were intended to eradicate the racial caste system that the Supreme Court's decision in Dred Scott versus Sanford codified in the annals of the U.S. reports. The court in Dred Scott held that despite the common law rule of U.S. citizenship that had been the default in the United States since the colonial period, those born in the United States but of African descent could never be citizens. was the Dred Scott decision. It was one of the most infamous and infamously racist decisions

in the history of the court, earning pride of place in the court's anti-canon. And yet, this five to four decision on the constitutionality of the EEO suggests that some members of this court are okay with returning to the pre-Civil War status quo. So I guess we're making Dred Scott great again. Although we're pretending that we are the ones who actually are correctly interpreting the 14th Amendment and its relationship to Dred Scott. And we have to consider the fact that the court was one vote shy of erasing a foundational part of reconstruction in tandem with the court's already successful efforts to eviscerate many features of the post-Civil War constitutional order. So consider Louisiana versus Calais in which the court concluded that Congress's powers

to enforce the reconstruction amendments was pretty limited and that Congress could not enact a law prohibiting actions that disempowered black citizens by diluting their votes. Also, side note is that Coach Kavanaugh's position seems to be that Congress cannot enforce the reconstruction amendments by enacting the Voting Rights Act, but that Congress can enact laws that enable the executive, or maybe Congress just outright can, rescind birthright citizenship. The incongruity is just mind-boggling and is maybe actually the point. Allen v. Milligan is another example of this court's zeal to water down the reconstruction amendments and more general post-bellum constitutional order. In Allen, the court watered down the prohibition on intentional racial discrimination by allowing Alabama to use a set of maps the state had adopted in defiance of the Supreme Court's own decision, previously in Allen v. Milligan.

Those were maps that in an earlier stage of the litigation had been deemed discriminatory because they diluted the political power and opportunities for black voters. We should also mention in this vein, Mullen v. Doe, where the court went to even greater lengths to blind itself to intentional racial discrimination and therefore, apparently, to condone it. In Mullen, a majority of the court concluded that the president's vile racist smears of Haitian nationals were not, in fact, racist. In doing so, it adopted a legal test that would render much of Jim Crow segregation legal. The court apparently now believes that plaintiffs and specifically racial minorities can only establish racial discrimination if, first, it is intentional. And second, no other non-racial motive might exist for the action they are challenging as racist. This test

is virtually impossible to satisfy, which again is, I guess, the point. Right. So back to the fearmongering. If you are among the people who think that birthright citizenship is protected and sacrosanct, and this was an unalloyed victory with the court standing up for the president and the rule of law, you need to wake up. This is your wake-up call. If you think that there is no danger of this court or some other government actor in the future suspending or nullifying birthright citizenship, this is your wake-up call. This court has already erased essential parts of reconstruction. It has for years, decades hobbled the reconstruction amendments by narrowing Congress's authority under Section 5. In Trump v. Anderson, they basically rendered Section 3 of no moment. And now they're doing it

with the rest of the Reconstruction Amendments, and in particular, this bedrock principle of birthright citizenship that has literally been in place since the colonial period with the one interregnum of Dred Scott that Section 1 of the 14th Amendment was intended to repudiate. And all of that, the fact that they are repudiating reconstruction and that they are doing it with their whole chest, that is what makes this five to four lineup in Trump versus Barbara so terrifying. I also want to take a moment to analogize Barbara and the response to it with another. decision, another five to four decision that reaffirmed a key settled constitutional principle.

That decision, Planned Parenthood versus Casey. Casey, by a five to four vote, declined to overrule Roe versus Wade and end the constitutional protections for abortion, even though it did water it down. What happened in the wake of Casey? Progressives and the legal left celebrated. They treated the issue as settled, and Casey as a win. Casey definitively resolved this issue for all time. They slipped into the mindset that the court as an institution would always protect rights, like the abortion right, recognized in Roe. And for their part, conservatives used Roe and then Casey to galvanize and energize their movement. They doubled down, made their ideological litmus test harsher, and 30 years later, overruled Roe.

I just want to jump in and say I did that Hassan Minaj podcast. We recorded it like a month ago, but it came out last week. But he asked me in the podcast about, like, do you think that birthright citizenship is going to become like a new litmus test for potential SCOTUS nominees? And I was like, I was like, I. hope that this is the kind of thing where Trump takes a swing at this, loses big, and moves on to like another shiny object. And I honestly think there is a chance that if this decision had been nine o against him, that might have been the case. Seven two maybe harder, but nine oh,

certainly and maybe even seven two. But absolutely five four, I now think he was completely right. And it will be. And I also think that Judge Ho in the Fifth Circuit, who we said, I don't know if he's like aged out of consideration. He was like a very early adopter. of this theory. Despite himself being a naturalized citizen. Correct. So I wonder whether that puts his odds better than we had assigned them the last time we had this conversation. To that point about, you know, this being the next row, there has been some commentary about how we shouldn't worry about birthright citizenship becoming this next galvanizing issue because there isn't a bottom-up grassroots movement to end or curtail birthright citizenship,

as there was with Casey and Roe. The movement to overrule Casey and Roe was engineered in large part by the Republican Party. It wasn't an organic grassroots animated movement. It was created and concocted in much the same way. I think this can be created and concocted. And case in point, if you listen to Fox News, as I know all listeners of this podcast do, you can already see this effort coalescing. So please take a listen to our same.

Sophia King, J.D. Vance. This was only a five to four decision, Laura. How many times did we hear people say that this was going to go eight to one against the administration? We made some very compelling arguments. We have the better of the case. We've just got to keep fighting at this. And this drives home, Laura, why the midterms are so important.

Because it's the senators who ultimately vote on those Supreme Court justices. Imagine if one of the five justices who made a bad call today, if they left the Supreme court. We want to make sure we get somebody good on there in the future. I mean, yeah, they certainly think the difference between 90 or 8-1 and 5-4 is significant, and so do we. So, yeah, there's no question they are going all in right now on birthright citizenship. They are trying to turn it into what abortion was as kind of a political galvanizer in the 90s and 2000s. These discussions that have such prominent place in Justice Alito's dissenting opinion of so-called birth tourism will

I think pretty clearly fuel incremental immigration restrictions as this movement like the abortion opposition movement is rooted in anxieties about demographic change. It builds slowly, but it is clearly going to be a decades-long effort to galvanize the end of birthright citizenship. And we know how the story ended in the courts when it came to abortion. And it's just really important that everyone learn the lessons from that. So I will just add, I think this really reveals the impotency of John Roberts, because in this moment, John Roberts probably wanted to be the Regina George to Donald Trump's Gretchen Weiner.

Like, stop trying to make birthright citizenship happen. It's not going to happen. But then you have his unruly conservative caucus of men, of frat bros, basically saying, no, I think we can totally make this happen. And here we are. We should also say something about the speed of this. Kate, I think you mentioned this in the emergency episode that we did on Trump versus Barbara. They widened the Overton window on this Kakamami theory of limited birthright citizenship,

making this completely off-the-wall theory that was literally birthed by one Rando law professor. They took this off-the-wall theory and made it mainstream in such an astonishing rate of speed. That part, I think, is actually the most terrifying thing. like the quickness, the alacrity with which they did this. And also for those people who were saying, well, it was only in dissent, the Supreme Court reaffirmed birthright citizenship. Have you seen how this Supreme Court treats dissents as the law? They have been using Justice Scalia's dissent in Morrison v. Olson as the law for decades. And this last term, they made a bunch of Scalia, Thomas Rehnquist's dissents and whatnot, the law.

And those were not even dissents for four, for the most part. So, yeah, like the fact that this is a dissent is very, very cold comfort. Strict scrutiny is brought to you by Armoura Colostrum. Are you feeling sluggish, bloated, not like yourself? Life bombards us with silent threats, processed food, artificial light, modern stressors that disrupt your gut, drain your energy, and weaken your immune health. And that's all before they get to the teenagers living in your house. Guess what, folks? Your body isn't broken. It just needs the right inputs. Armour Colostrum is nature's original blueprint for health. Colostrum is packed with over 400 bioactive nutrients that fortify gut health, fuel fitness recovery, and strengthen immune health,

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order that we want. So we need to highlight and remind people of the extent to which the Supreme Court is undermining our democracy. And we are not just referring to the chaos it has engendered in the upcoming midterms. That's significant, but that is a small piece of the larger picture. The court is engaged in a sustained attack on the democratic legitimacy of institutions and elections and also the Democratic capacity to govern. And I think our list of evidence in support of this broad thesis is very, very long. So let's tick through some of what Skodas did along these lines. So the Voting Rights Act decision, in tandem with the court's decisions on racial gerrymandering

and intentional racial discrimination nullified what remains of the nationwide ban on discrimination in voting. As a result, states, especially those in the former Confederacy, raced to redraw districts that would lock black voters out of political power by entrenching often white Republican incumbents and eliminating districts where black voters had the opportunity to elect their preferred candidates. And that's not even all, right? So this is the same court that allowed Texas to proceed with what was perhaps one of the most transparent racial gerrymanders in recent memory. And I know listeners, it's been a long term, so we'll catch you up again.

This was when the Department of Justice's division of civil wrongs in Harmeet Dillon directed Texas to engage in mid-cycle redistricting in order to eliminate majority minority districts in Texas. And specifically, they wanted them to get rid of the minority coalition districts where different groups of racial minorities can ban together to give themselves greater political opportunities. A three-judge district court panel, which included Trump appointees, determined that DOJ had basically laid out on paper, taking notes on a conspiracy, a plan to target these minority coalition districts. It seemed like a very cut and dried case of impermissible racial gerrymandering, but this court said, no, don't see it. Don't see it at all. Seems partisan to me, and that's not bad. In fact, that's exactly what we should be doing. It's totally fine. Please proceed. And then, this court allowed Alabama to move forward with districts that were, for all intents and purposes,

exactly like the districts the court had invalidated three years earlier in Allen v. Milligan, which is to say that the districts, as drawn, only created a single majority minority district out of seven possible districts in the state, where black voters comprised 25% of the electorate. More troublingly, it was evident that the legislature in Alabama drew the districts to achieve that lopsided result. And the court was okay with it. Then there is National Republican Senatorial Committee versus Federal Election Commission, the campaign finance decision that the court released on the last day because it was released on the same day as birthright citizenship and the trans athletes case. It's kind of flown under the radar. But in this case, the court invalidated a

federal campaign finance regulation. That's what's known as a coordination limit. The coordination limit prevents individuals who are limited in the amount of money that they can give to candidates from circumventing that restriction by instead coordinating with political parties to donate money in much higher amounts to the parties that the parties then, in turn, funneled to the candidates. By invalidating that anti-coordination regulation, individuals now are effectively freed from the $7,000 limit on individual donations to candidates because they can instead coordinate with the party to channel more than $550,000 to candidates. This will make elections less Democratic by once again giving the super-rich

outsized influence over candidates and officials. And it will benefit Republicans who are lagging behind Democrats in small dollar donations and would prefer if their big donors could simply pour more money into each campaign rather than being hamstrung by individual limits. Under this account of the First Amendment, free speech isn't free. It's actually quite costly. I just want to take a beat on the chutzpah of the court. Like the massive amounts of outside money in politics that we sort of live under at this moment

are because of their decisions from Citizens United onward. Those are what have led to the state of affairs. And then somehow the court tries to suggest that that is a reason that this law must fall. I think that this is what Rick Hassan calls like deregulatory bootstrapping. It's like we do a thing. And then that creates some consequence. And that gives us an excuse to do another deregulatory. regulatory thing and then another and then another. And yet they sort of want to tell us that

they're just actually responding appropriately to the circumstances that they are encountering. It's a race to the bottom, Kate, but it's their race and they're running it. And they're winning it, unfortunately. The case is just the latest in a string that actually very tangibly undermine democracy by making our institutions more susceptible to corruption. As to just this one, consider the combined effect of the case, this case, NRC, and slaughter the case about the president's power to fire. Now, the super rich can effectively funnel more than half a million dollars to individual candidates and the president can fire any independent regulator who might potentially get in the way of the super rich, their corporations,

and their interests. So cast your memory back to January 20th, 2025, and the array of oligarchs that flanked Trump at his second inauguration, it really does seem like they are getting their money's worth. Here's another piece of the. this I think is actually worth commenting on because this part actually does seem genuinely insane to me. This court acts like it is just sending these decisions out into a vacuum as opposed to the reality in which we have an administration that is or that appears to be rife with corruption and pay-to-play expectations. Like that's the landscape in which they issued this decision on campaign finance. And again, to belabor the point, this week the New York Times reported,

Quote, President Trump reaped a stunning windfall in his first year back in the White House, including about $1.4 billion from his family's cryptocurrency businesses. All told, the president pulled in at least $2.2 billion. That compares to a minimum of $622 million his enterprises pulled in for all of 2024 before he returned to the presidency. I don't think anyone has to be reminded that one of the things that has been incredibly deregulated since the second Trump administration started is cryptocurrency. So interesting, so weird.

Is it illegal to be a successful businessman? No, I don't think it is. No. Okay. Who's also the president? Right, no. No. No. Exactly. So with that out of the way, let's turn to some additional themes or what we're actually

calling themes. One is the Supreme Court perpetually mimicking the guy with a butterfly meme. You know the one. It seems like the court, and specifically the Republican supermajority, is always asking itself, is this law? But also the answer to that question seems to be utterly irrelevant, because they also apparently decide not to bother with law at all. Unlike this court's shadow docket decisions, we are happy to show and tell. So we're going to provide some examples of what we're talking about. Take slaughter. The court overruled Humphrey's executor and restructured the government, but did not bother to explain the new law of the land and how all of this would actually work. The court declared that all of the executive power is vested in the president and therefore the president has to be able to remove anyone exercising significant executive power. No if, if, ands or quasi's about it, John Roberts wrote into the opinion. But then in Slaughter itself,

the court provided some ad hoc exceptions, suggesting that the broad new removal power doesn't apply to adjudicatory bodies within the executives such as the tax court. But the majority conspicuously said nothing, like nothing at all about whether the decision called into question the independence of the civil service. That is, does the president who now has the authority to fire the heads of independent agencies also have the authority to fire civil servants who are hired based on merit, who are permitted to keep their jobs if they perform competently, and who by statute are protected from being summarily removed at the president's whim. These are the people who do the work of government that impacts all of our lives in countless ways from food safety to environmental

protection, to mail delivery, to weather. The opinion says literally nothing about whether these members of the executive branch are also removable at the pleasure of the president, though the decision's logic suggests there's at least a very real chance that they are. In previous cases where the court made these overtures toward unitary executive theory, even if not the full embrace that was reflected in slaughter. Call it foreplay. That's for play.

Yeah, I would say more forplay than flirting. It was beyond flirting, but it wasn't the kind of full consummation that slaughter reflects. Just a tip. It would at least, the court would at least adopt a conclusory sort of caveat

that the civil service wasn't implicated in its reasoning. Didn't do that here. And I don't think it's because they didn't. think about it. It was also, this is, I think, to my mind, a little less important in terms of the impact, but also just in terms of the kind of responsible lawmaking or lack thereof, the court is engaging in. It wouldn't even tell us whether Humphers executor had been overruled already or it was being overruled in slaughter. It seems pretty basic, and yet they gave us no

clarity. Well, because, duh, you're supposed to know, read my mind. That's the Dionne Warwick School of Originalism. Read my mind to know what I meant. Right. There's also the fact, Kate, that on the very same day that the court released Slaughter, saying that there's no ifs and and quazis about the president's executive power to remove individuals who are the heads of agencies, it also released Trump versus Cook in which it said everything we said in Slaughter except the Fed, not the Fed. The Fed, as we have talked about ad nauseum on this podcast, not just this term, but in earlier terms when they have tried to dismantle certain administrative agencies like the CFPB, for example, they've always made these feints toward

the distinctiveness, the uniqueness of the Federal Reserve. And they reiterated these themes in Trump versus Cook saying that the Fed is a uniquely structured quasi-private entity with a distinct historical tradition. And so again, this is me doing the guy with the butterfly meme. Is this quasi? I don't know. Like, is the Fed quasi? And if there are no ifs, and quasis about it, what does that mean for the Fed? And the Cook decision didn't really provide a great answer for it. The chief could not be bothered to explain why the Fed was different from every other independent agency besides gesturing with a kind of word salad that he had inserted and it was now citing from an earlier opinion, Wilcox, that the Fed is just unique. It's a quasi-private entity with a

distinct historical tradition. But what does that even mean? Like how explain it to me? show, don't just tell, like, show us how it is different and tell us how it's to produce something, but not this. Even Amy Coney Barrett, who I think ordinarily can get in line with some of these things, seem to be deeply, deeply disturbed about the incongruity between the slaughter decision and the Cook decision. So she wrote in her dissent in Cook, quote, The court's holding is in serious tension with Trump versus Slaughter, which we also decide today. How can history support both a categorical rule and a carve-out? It's a great question.

These are the questions indeed. It is right up there as a question with, is it racist to describe Haiti as a shithole country where people are poisoning America's blood? I don't know. But can we go back to Barrett and her descent and Cook? It's just part of what is so maddening about her is that she's so close, right? Like she's saying it seems like there's real tension here. And the obvious next step is slaughter is crazy and wrong.

And could, if you could just look around that corner. No, I think she's like, there's real tension here. Cook is crazy and wrong. Get rid of the black woman, too. Right, sure. That's where she comes down because she descends. But it just feels like the question she's at least identifying suggests that she should be able to get to the right answer as opposed to the wrong one.

In Cook, the court also could not be bothered to adopt an actual legal test to tell us under what circumstances a president can fire, a governor of the Federal Reserve Board under the statute. Instead, the chief declared, quote, we need not fully demarcate the contours of cause today, and followed it up again just by reciting this word salad. It is sufficient to observe that any definition of cause must reflect the Federal Reserve's unique historical status and role. And of course, the administration immediately seized on the court's failure to be clear on this point because it is suggesting that it may take another run at trying to fire Federal Reserve Governor Lisa Cook. Love to imperil functional government on the basis of some half-baked and yet also very dumb ideas.

Well, Leah, this isn't just about a half-baked, dumb idea. This is when we return to Lisa Cook's firing. We'll get to decide if it's permissible or not. I mean, that's what that said to me. It will be in our discretion whether it's going to be actual cause here. Yeah, completely. And just kind of back to the word salad, which is like the key source of authority, like his own previous word salad on which Roberts relies in his cook opinion,

it is, we should say, to be fair, it is not just the chief who does this. So here is what passed for legal analysis in Justice Barrett's majority opinion in Cisco v. Doe, which held that the alien tort statute does not allow victims of human rights abuses to sue the companies that allegedly abetted their torture. Barrett wrote, quote, our starting point is Sosa's key insight. The ATS is a jurisdictional statute creating no new causes of action. Put differently, as enacted in 1789, the ATS gave the district court's cognizance of certain causes of action, which be spoke a grant of jurisdiction, not power to mold substantive law. Justice Scalia would have stopped there.

Okay, close quote. That's the quote from Sosa. That seems to be the reasoning of the opinion. I feel like what we need to do. There's like, you know, what are the justices in this sort of like, whatever the version of originalism they claim to be practicing now is like text, history, tradition. It's also just like their own like gibberish word salad precedent.

It's not even like the holdings of their previous cases. It's like the musings of their previous cases. Like that's what our law is made of right now and it is terrifying. Well, I think we could also talk about this as a kind of sub-theme. I mean, she talks about the sort of, you know, inverting to history. They were always talking about history this term. And the theme seemed to be like histories written by the winners. And the winners, that's us.

We're going to be the winners here. And they often were just like doing history in the most insane way. Like, is this history? Is this tradition? Is this originalism? So there was Hamani where we literally had. drunk history of the founding frat bros, courtesy of Justice Gorsuch. And then the court apparently is just getting warmed up with Hamani because it really hit its stride with Wolford versus Lopez

dropping new Bruin factors, including one, whether the proffered historical analog was anti-racist and woke. And if it was racist and unwoke, we definitely can't consider it, new bruin factor. and was the historical analog widely accepted and very popular? And if it wasn't, if other people did not cotton onto it, and it wasn't wildly popular and get five different prom dates, we can't accept it either. It wasn't historical, but it definitely fell into the category of, is this law kind of like the but the Fed thing?

And that's Justice Kavanaugh's effort to think through the equal protection question in West Virginia versus BPJ, the challenge to a state trans sports ban. It's not an exaggeration to say that his reasoning, such as it was, boiled down to because sports, the sports context, a phrase that is repeated ad nauseum in this opinion. Like, are you their law? It's me, Brett Kavanaugh. And taken together, it seems that these justices think the laws, whatever they, the six God kings in robes, speak into existence. And I couldn't help but wonder, I say, in my Carrie Bradshaw voice, am I the only one who cares about law? But I do wonder, is this laziness or is it a flex? It can be both. There are still three of them that do, Leah. There are still three of them that do.

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when they use the code strict at checkout. Just head over to Jones Roadbeautcom, use the code strict at checkout. After you purchase, Jones Road will ask you, where'd you hear about our products? please support strict scrutiny and let them know that we sent you. Let's go on to a second theme. And I think this theme is basically, let's cuck Congress or separately, is Congress a cuck. The answer is always yes. So in an effort to complement its expansion of presidential authority, the court also made sure to completely emasculate Congress, although to be fair to the court, Congress was doing

a pretty good job of emasculating itself. But this court effort to further emasculate Congress came across very clearly in the birthright citizenship case, with one exception, we'll get to it, as we discussed in our emergency episode. As Leah noted in that episode, it wasn't enough for the court to say what the president can do. It also said what Congress cannot do, or sometimes, and again, implausibly here, what Congress absolutely did not do. And that's important because at the same, same time the court was empowering itself and the president, or at least this president, it is incapacitating Congress in a number of different ways.

And empowering less democratic branches is always a recipe for entrenched minority rule. Maybe it comes through oligarchy. Maybe it comes through cacistocracy. Maybe it comes through kleptocracy. Maybe it's through aristocracy. Who knows? It's all unclear. But we do know that when those branches are empowered, nothing good happens. So all right. So let's take stock of some of the things that the court has said that Congress cannot do. First, Congress can't make spending clause statutes enforceable against the officials who carry them out. The officials have to opt in to the statutory scheme. Sounds very efficient and normal, which is to say totally unworkable and just going to mean spending clause statutes, like just actually can't be enforced. Okay,

second, while Congress is permitted, right, they're allowed to pass laws. Court hasn't yet said they can't do that, but is permitted to enact legislation under the reconstruction amendment. When that legislation departs from the court's understanding of what the Reconstruction amendments require, Congress actually can't legislate. So, for example, if SCOTA says the Reconstruction Amendments prohibit only intentional discrimination, then Congress can't bar unintentional discrimination, even though Congress, in the actual text of the Reconstruction Amendments, is given the power to enforce their provisions.

There's one exception to this, Kate, and that has to do with Section 3 of the 14th Amendment, where the court's understanding of Section 3 was very very, different from everyone else. But it was actually a congressionally empowering understanding where Congress was empowered to enact legislation to disqualify Donald Trump from the election. And they hadn't done that. So, you know, there was that. That fair correction. Yes. I want to be fair to them. So that one was about handing tons of authority to Congress. And as you said earlier, Kate, in fairness to to Brett Kavanaugh, he also thinks Congress can rescind the first sentence of the 14th Amendment. So Congress actually, okay.

That was the exception I was referring to earlier. Yeah, that the court actually did embrace this term. And yet there were many, many places where they seemed really to curtail congressional authority. Just to name the other big one, which you've already mentioned, but to make it explicit in this context, Congress can create agencies, but it cannot impose conditions of the removal of agency officials that might make these agencies independent, really to any degree of the president. I just had a thought, which is we are being told over and over how this Supreme Court is actually empowering Congress. And I just wonder if they have adopted their approach to sex discrimination to Congress. They are putting Congress on a pedestal, but actually a cage. They are destroying Congress in order to save it, et cetera, et cetera. Does the analogy work? A protectionist vision. I have thought a lot about how to like explain what is so insanely internally.

inconsistent about this sort of faux Congress empowering Congress disempowering Supreme Court. And I think pedestal cage actually is a very good candidate. This is the Mueller vision of congressional authority. Yes. That's a reference to Mueller v. Oregon, the case that upheld minimum wage law protecting women. But we're not even done. Listing all the things the court told Congress it can't do.

When it comes to campaign finance, Congress can adopt anti-evasion, anti-circumvention laws to ensure the integrity of other limitations. it did enact. And who could forget how earlier this year, the court in the United States Agency for International Development case also suggested that Congress couldn't really enforce at least some of its appropriations decisions against the president. And so at the same time, the court is fashioning an unaccountable presidency, a president who can't be subject to criminal laws, at least for official acts, a president who can fire officials in violation of federal law. The court is also disabling the branch that could check the president. They simultaneously rendered various congressional

laws, not real laws, in the sense that the laws aren't enforceable against the executive branch. In addition to the spending clause statutes that we just mentioned that Leah just took through, the court also rendered unenforceable various protections for immigrants that Congress had created. So these were protections that limited actions that the executive could undertake. For example, Congress passed laws requiring certain protocols when the executive seeks to rescind, say, temporary protected statuses. Now, the court has concluded in Mullen v. Doe that those limits aren't actually reviewable by a court, which means that they aren't really enforceable in a court. So, uh, want, want. Another example is the court's

treatment of the laws that protect lawful permanent residence entry and admission into the country. Despite the fact that Congress wrote a statute that included those protections, this court decided that those protections don't really apply at the border. And instead, what does apply, is the discretion of executive officials to decide whether or not the LPR has engaged in a crime of moral turpitude and on and on and on. Other laws have giant truck-sized loopholes that we think are likely to be exploited going forward. I think it's pretty sure that they will be exploited going forward. So take, for example, the asylum protections that Congress has enshrined in law. Apparently, those statutes don't apply when the executive decides to create

workarounds to them, like, for example, a metering policy that effectively blocks people from crossing the border into the United States. In those situations, they're not really in the United States, therefore those protections don't apply. Another theme is the importance of timing. That is the time frame on which the court agrees to take up these issues and decide them. As with most things at one first street, the decisions involving timing are often at the court's discretion where they make all the rules. And one thing is it is a choice to empower presidents, especially now with this president, and it's also a choice to do so on an expedited schedule. They took Trump v. Slaughter, where the court in a shadow docket ruling allowed the president to fire a federal trade commission commissioner,

and then granted cert before judgment in the case. So they could decide the issue before it made its way to the court in the normal appellate process after the court of appeals did so. The court also granted cert before judgment in the temporary protected status cases. And more generally, it's just curious that they seem unable to recognize that we have a problem right now with executive power. And they have justified reversing previous decisions and attacking previous theories on the ground that those theories produce horrible consequences. For example, when they explain why they have adopted Justice Scalia's dissenting opinion in Morrison v. Olson, they talk about the fact how Ken Starr was Justice Scalia's parade of horribles walking down

1,600 Pennsylvania Avenue. And I just want to ask, do you not recognize that all of the parade of horribles about the Unitary Executive Theory has been constantly on display for the last 18 months? There is no sign that they're recognizing

it at all. That's the history and tradition part. It's pretty wild. But back to timing, the court manipulates timing, I think, in a bunch of different directions. Consider Calais, where the court could have decided the case on narrower grounds when it first heard it argued back in 2025. Instead, it asked for briefing on the much broader question of whether the legislative districts

at issue violated the Constitution and then heard arguments this past fall and waited until April of this year to decide the case when primary elections were just weeks away in many places. Like that was a choice. Well, not just a choice. Nobody asked those questions. The court asked those questions. So, I mean, not just manipulating the timing. Simuling was just asking questions, Melissa.

He's just asking questions. In addition to the timing manipulation, there is also the problem of the court deciding issues that are not live. That was, I think, the case in the asylum case where DHS had ended its policy of metering asylum seekers at the border. The policy change likely should have rendered the case moot, but the court wanted to get to it was eager to announce that the administration could use this policy if it wanted to, and so it ruled anyway. Another issue involves the court issuing rulings, one, the factual. record below remains underdeveloped or even undeveloped in some cases. This happened in West Virginia versus BPJ, the trans athletes case. The court decided the question of whether the West Virginia ban on trans athletes violated the Equal Protection Clause of the 14th Amendment while there was still

an outstanding factual dispute in the litigation that had not yet been resolved. I will say just one more thing about the court's timing. It's not just about when they decide cases. It also is about what cases they decide to grant cert on. So they move very quickly, I think, in granting cert on certain cases. I think this was more evident last term where we saw them take a bunch of cases and then dig some of them. There are a lot of digs last term. I think there's only one dig this term. But it is relevant. And I think it sort of is one of the consequences of this super majority. They only need four. They clearly have four for almost everything, but I don't know that they vet as closely the vehicles that they are accepting as they pursue their agenda such that it is. The court also manipulates timing in ways that I think

are designed to help it bolster its own agenda and standing. So it issued slaughter a massive triumph for the president, together with other decisions that were less favorable to Trump, including a denial of certiorari in Trump's appeal of the E. Gene Carroll judgment, the decision in Cook and the decision in Watson, where it refers to. to change the rules on counting of mail-in absentee ballots. And on Cook itself, they put Cook on their oral argument calendar when it arrived at the court as an application of a stay. And in that decision, the justices didn't even prohibit the president from later firing Cook based on this bill, Pulte-concocted mortgage fraud fraud theory. They also packed so many decisions into the

final week. It is virtually impossible to cover the significance of all of them. In any finite period. They issued birthright on the final day, going out with a bang. And of course, they were the ones who created the circumstances necessitating birthright to be brought back to them by refusing to decide it in the case last year on nationwide injunctions. And who also, during that oral argument, demanded that the federal government bring the case back to them as you can hear here. When you lose one of those, do you intend to seek cert? If we lose, yes, absolutely. And just one more thought on timing, the extent to which they are so insistent on injecting all of their own views now and taking all of these issues now. They can't wait for litigation to unfold. It has to happen

immediately. And they are just deciding so many of these big issues. It's wild. Yeah. Okay. Let's move on to theme, I think it's four now. And that is trying to remedy racial discrimination and exclusion is the real racism. By contrast, real racism is not racism. So this is, I think, It could be xenophobia. It could be xenophobia. It could be partisanship. It could be a few other things. But I mean, I do think that this is the culmination of sort of developments we've seen in recent terms. But I also think that things went significantly further in this term than they ever had before. And I want to provide a little bit of context, which is that once upon a time, there were justices on the Supreme Court who took the position, very explicitly, that in evaluating race-conscious government action, it mattered a lot what the reason for that action was.

and it should be scrutinized differently, depending on what the reason for that action was. So Justice Stevens has this pretty famous dissent in a case called Adirang, in which she says explicitly, there's a world of difference between a government program that makes race conscious decisions

to include members of a minority race that has long been excluded by discrimination and a program that makes race conscious decisions to exclude members of a disfavored race. Okay, so we might look at those two things differently. Justice Thurgood Marshall wrote very similarly in the Baki case, quote, it is because of a legacy of unequal treatment

that we must now permit the institutions of this society to give consideration to race in making decisions about who will hold positions of influence, affluence, and prestige in America. Okay, obviously sounds like this is like they're speaking from like some distant like galaxy and era. But that position did not carry the day

and this court in recent terms purported to embrace the idea of a colorblind constitution, it doesn't matter why you're taking race conscious action. It is all subject to equally searching scrutiny. Okay, that was apparently the rule until this term. This term, I think the court basically went beyond race-blind and fully embraced the inverse of the position that Justice Marshall and Justice Stevens had advocated in the quotes I just read. They seem to enshrine into the law, basically the view that some government uses of race should be scrutinized more skeptically. only now, it is measures designed to facilitate the voting power of racial minorities that should

be viewed more skeptically and actions taken to injure or disadvantage on the basis of race get a very light form of scrutiny. Well, depending on who the victims of said racism are, so I think that's an important caveat. But to your point, Kate, I think Louisiana versus Kelly bears this out. So this is where the districts were drawn to facilitate minority participation and political power. The court decided to take a very skeptical look because must police the racism. And ultimately, the districts fall because, you know what, that was a problem. That was the racism. The actual drawing of the maps in the first instance, that was just partisanship. That is just fine. In a follow-on case, Allen versus Milligan, same thing. Diddo the shadow docket order in the New York case,

Maliotakis, where the court struck down a New York map on the grounds that it was drawn to protect the political power of black voters. But in cases where the government action is race conscious in ways that adversely impact racial minorities, the scrutiny is much, much lighter. So in the Texas gerrymandering case, for example, despite the fact that a three judge court, which included Trump appointees, found that the new map was drawn on the basis of race specifically to eliminate minority coalition districts, the court said, I think it's just partisanship here. And Justice Alito, in that wrote separately to say, but actually it was, quote, partisan advantage, pure and simple. He knows. He knows because he can tell racism when he sees it. Or can he? Because in the TPS case,

where the government action was one that would have a devastating effect on hundreds of thousands of Haitian nationals and in the face of the administration's rank racism around Haitian nationals and the country of Haiti, the court basically said, this is just the rough and tumble of politics, or maybe it's xenophobia, but it definitely isn't racism. Clock it. Strict scrutiny is brought to you by LifePro. Guess what folks? You know what everyone's talking about these days? It's not the Supreme Court and court reform. Well, not all the time anyway. Lots of people are also talking about lymphatic drainage. I would like to do some lymphatic drainage on this court personally. But here's what I'm hearing about lymphatic drainage. Influencers

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Welcome home. I'm Erin Ryan. And I'm Alyssa Master of Monaco. And we're the host of Hysteria, the podcast for women who care about democracy, culture, and not losing their minds in the process. We break down the news, call out the nonsense, and spotlight the women actually fighting back, on Capitol Hill, in classrooms, and everywhere the stakes are high. It's sharp, honest analysis featuring women's voices with humor and zero handholding. Listen to Hysteria wherever you get your podcasts and watch full episodes on YouTube. Fifth theme, which is going to overlap with some of what we have already said. But the whole episode.

We made in individual episodes, but still important to spend a few minutes on. And that is the galling hypocrisy on display of this term. This is a non-exhaustive list of the wild internal contradictions, just involving opinions from this term. Justice Alito in Calais wrote for the court that drawing the second black opportunity district in Louisiana was race-based discrimination that the Constitution forbids. concurring in the Shadow Docket case, Malia Takas, which Melissa just mentioned, he said it was super racist to draw a congressional map for the express purpose of ensuring that minority voters are able to elect the candidate of their choice. He even elaborated that that was unadorned racial discrimination and inherently odious activity that violates the 14th Amendment's equal protection clause. And then in Allen v. Milligan, court overrode a lower court opinion that, quote, drawing every inference in the legislature's favor, found that the record compelled the conclusion that the state intentionally entrenched the racial discrimination in drawing its legislative districts. But again, in the TPS cases, Alito held that the president's description of Hedias, a shithole country, which is filthy, dirty and disgusting.

And his accusations that Haitians, among other things, were poisoning the blood of our country were according to Justice Alito not overtly racial. and all express policy views that could rest on race-neutral justifications. So that's a new theory of constitutional interpretation. It's called saying the N-word with a hard R. Once you do that, then you might be in the overtly racial category. Maybe, possibly. Maybe. He might try to find his way out of it there. The list of examples of hypocrisy is long, but here's a few others. First, also involving Justice Alito. In the Hawaii case, Wolford v. Lopez, because Alito really kind of like disdainfully dismissed the relevance of what he called the spirit of Aloha to the Second Amendment. He wrote, local attitudes can neither shrink nor inflate

the meaning of fundamental Bill of Rights guarantees that apply to the states through the 14th Amendment. But of course, in Trump v. Barbara, the birthright citizenship case, he had no trouble telling us the advent of what he kept referring to as, quote, birth tourism changed the meaning of the 14th Amendment. Obviously, you know, we've already talked about this, Robert's insistence in slaughter that the president has full ability to fire, no ifs, ands, or quazis, but then his reliance on this bespoke exception that's all about the quasi to carve the Fed out from that. Okay, here's a Kavanaugh sort of example. His learning resources descent, which Melissa, I think you've rightly focused on in a

couple of conversations, was largely about his view that there is a foreign affairs exception to the major questions doctrine, but also just took a pretty broad, maybe unlimited view of presidential power, maybe only in the foreign affairs context, maybe broadly. he had no problem joining the Cook majority opinion ruling against the president's power to fire. And then also on Kavanaugh, this is a terminological point, but I think an important one, do you guys remember that during the BPJ oral argument, he used the terms transgender women, transgender girls to refer to those impacted by the Idaho and West Virginia bans at issue? So fast forward to his authorship of the opinion in that case.

And he uses biological males again and again. I felt like I was being stabbed in the ear as I read it, and I can only imagine how appalling that was to the plaintiffs in the case, to individuals who are themselves or are parents of trans athletes. It was horrifying, and it was a choice. He understood how to use, like, baseline level of respect in language, and he chose not to do that in this opinion. Well, I think the galling hypocrisy of Brett Kavanaugh relates directly to his unwavering need to be liked by all sides. So at oral argument where anyone could be listening, he's using preferred terminology, like maybe more progressive terminology. In the opinion, which is likely to be read only by dyed in the wool people who may have real feelings about it, he uses these other terms.

I will also say, I am now thinking about his dissent and learning resources in light of the concurrent slash dissent and birthright citizenship. And this is such a play to be the chief justice, to be the next chief justice. this is Brett Kavanaugh. Like, pick me, pick me. I will give you unlimited presidential power, not just in the domestic arena, but also in foreign affairs. I will give it all to you.

Like, that's what this is. I think you're probably right. And then one last example is the chief going back and forth on whether Confederate sympathizer and virulent racist, Andrew Johnson is a good guy. And whether we should definitely model government around Johnson views. Slaughter said one thing.

Barbara suggested another. Well, I mean, you know, six, seven on Andrew Johnson. One last theme from me. This one I'm calling blinkering reality. And it's kind of a dozy. The way this court and many court watchers blinker reality really sets my teeth on edge. And I'm going to say that this blinkering of reality works in two ways. The first is the way that court watchers try to sanewash what the court is doing. So this, I think, came across most clearly in the birthright citizenship. case and the response to it. So many people, both in the media and court watchers who have podcasts and whatnot or, you know, work in court adjacent milieus, were all talking about how this was a six to three decision. It was a six to three decision. I was actually on a panel with someone who accused me of fearmongering because I kept insisting that it was a five to four decision and she kept saying that it was six to three. So that's sanewashing. This was a five to four decision. It's a real problem. The six to

whatever, that's a facade, a Potemkin village. The real stuff is behind that 5-4 decision. I also think this blinkering of reality works in another way and a more invidious way, which is to say that both the court and some of these court watchers seem stubbornly blind to the environment in which these decisions come. So the transathletes cases, for example, it is a relatively modest decision, all things considered, but it is going to have a maximal impact because it's going to be harnessed by this administration to prosecute the campaign against trans people. So the fact that the court can't see what is going to happen, especially when they're great exemplars, I mean, SFFFA has been harnessed and ridden like sea biscuit to dismantle DEI,

even though it says nothing about DEI in private context. So it would be great for the court to kind of acknowledge what the environment actually looks like. And I think we are in an environment where we can no longer take the court on its own terms. We have to understand their decisions in the context of a landscape, which is insane, where there is no presumption of regularity. And I just wish the court and other court washers, court watchers, not just washers, although they are washing, I wish they would grapple with that, too. The court watchers and the sane washers. Yes. Yes. The court washers who are sane washing the court, exactly. Okay. This is getting a little bleak. Can I ask you to play a quick game with me just to lighten

it up a little. Absolutely. Sure. I'm going to ask you to blind rank several explanations for what has happened to Sam Alito's brain besides being pickled by marinating in Fox News. So I'm going to give you a reason. I'm going to give you seven and you have to pick what number it is before you know the others. Okay.

Okay. This is like a hard game. I wish I had a cocktail. So one is most likely, seven is least likely. Okay. Okay. So very first explanation. What has happened to Sam Alito's brain?

brain the same thing that happened to Mitch McConnell's chin. I'm very specific. Six or seven, I would say. Okay. Five. Okay. Six. Okay.

We'll split. Yeah, exactly. Okay. Same things that happened to Mitch McConnell's chin number six. Next reason. It was a failed experiment by the Heritage Foundation. Four. Three?

We can do four. Okay. Failed experiment by Heritage Foundation. Don't worry. I'll read you the total list at the end. Next explanation. It was a successful experiment by the Heritage Foundation. Two.

More likely. Yeah, too. Okay. Okay. You want that at two. Okay. Three. We can do three.

Either one. Which one? What do you think, Kate? It seems like a pretty good theory to me. Okay. I'm good to stick with you. I don't know. We don't know what the other theories are.

There could be better. No, we don't. That's why it's blind. This is always the danger. Okay. We went with two. Successful experiment by the Heritage Foundation. Next one.

Flag-induced homophobic dementia. could be one I do like that one I mean I don't like it I think it has potential explanatory power one three five and seven are what you have left I say five I'm good with either three or five

okay we'll do five okay because I just don't know what else is coming I know okay so okay next one January 7th that radicalized him.

When the coup didn't work, one, three or seven. I want to say one, but I don't know. It's so hard. Three. What do you think, Kate? Yeah, well, let's save ourselves for potentially something better coming. Yeah, this is good. Okay.

Saving yourself for something better coming is just like how we feel about this court generally. It keeps not coming. Okay. Second to last, reason to fill in. What happened to Sam Alito's brain? A wife swap with Clarence. Thomas gone wrong. Seven.

Seven. Because Clarence Thomas can see racism. That's the problem. That's not it. Right. Final one. This is what you've chosen to rank number one. Nothing.

He's always been like this. Yes. We're right. I like that. I think we played our cards pretty well. Okay. So I will now read a list in order of the most likely explanations for what has happened to Sam Alito's brain besides being pickled by marinating in Fox News.

Number one, nothing. He's always been that way. Number two, a successful experiment by the Heritage Foundation. Number three, January 7th. Number four, a failed experiment by the Heritage Foundation. Number five, flag-induced homophobic dementia. Number six, whatever happened to Mitch McConnell's chin. And seven, a wife swap with Clarence Thomas gone wrong.

I would only change two of those on reflection. I would have put, on reflection, knowing what all the choices were, I would have put January 7th, second, and successful experiment, third. And I would have swapped Mitch McConnell's chin for 7 and both wife swap that. Yeah, yeah. But I think, but I think honestly, for blind ranking, I think we did pretty well. I think we did a great job. He's always been this way, is regrettably.

A few other trends we just wanted to note. now that we injected some levity. One is a trend that was raised by ProPublica, which found that this term, quote, the Supreme Court passed an important milestone. For the first time, it decided more cases by secret ballot and with few signed opinions that is on the shadow docket than it did for cases argued in open court. Can we have a round of applause for a lack of transparency? Yes. Can we have a round of applause for our friend, the great Steve Lodick, who just stays on this the court would like us to think. And I do think that in the leader part of the year, they have you know, in terms of the term, they have slowed down. They have done a lot less, like,

enormously destabilizing stuff on the shadow docket. But over the course of the term, like, this was a huge part of what they did. And it's just important not to let them memory hold that. Okay. The next sort of thing we wanted to mention was about this kind of subtle but important feature of Supreme Court opinions, which is whether they do or do not respectfully dissent, right? whether they modify their announcement of their dissent with the term respectfully. And our amazing intern, Jordan, actually took a look at the use or lack thereof of respectfully in opinions this term and found that the Democratic appointees only omitted respectfully or with respect from their dissents once all term, which is Kagan's emphatic descent in Kelle.

Meanwhile, Alito withheld his respects twice, once kind of unexpectedly in Rico versus United States, which is a case we definitely haven't talked about on this term recap because it wasn't one of the biggest cases of the term, but he solo dissented and ended simply with, I would therefore affirm. Was he like trying to make a point of how upset he was or did he just kind of forget? I have no idea. But he definitely didn't accidentally forget his respectfully in Chattray versus United States, which is this big Fourth Amendment case he was big mad about. And he ended his introduction to his dissent with, quote, I cannot support this irresponsible escapade. And he concluded his full opinion with today's decision all but guarantees that we will be cleaning up debris

for the foreseeable future. Both of those would be great T-shirts. I too cannot support this irresponsible escapade, sir. Or we will be cleaning up debris for the foreseeable future? I mean, all so great. Listeners, if you are down for a shirt that says, I cannot support this irresponsible escapade with just a picture of the Supreme Court below, please let us know. Yeah. Yeah. Yeah, yeah, yeah, yeah. I would wear that for what it's worth. All right. Let's do a lightning round. Very quickly, best dissent of the term. You first, Leo Lippman. I refuse to just name one. So I will say, Justice Jackson's in Landor on rendering public benefit statutes, spending clause, statutes unenforceable, or FS credit where she did a full-throated defense of something other than textualism, Justice Kagan's dissents in Mullen v. Doe, the TPS case, or Louisiana. versus Calais and Justice Sotomayor's dissents in Allen versus Milligan or Alo Torado.

I just think those were all phenomenal writings that really met the moment just in various ways. I did want to insert another one just so people understood. I was being fair and balanced. And I wanted to nominate for best separate writing, Justice Kavanaugh's concurrence in Cook. Why? It's because he admitted it in Cook. We have joked about how the explanation in Cook is, but the economy. but my stock portfolio, but my emotional support billionaires.

And he writes, quote, I agree with the court that we should not leave open the question whether the Federal Reserve can remain an independent agency in the wake of slaughter. Even temporary uncertainty about the status of the Federal Reserve could spark political upheaval, including confusion about whether the president could immediately remove multiple governors at will,

as well as turmoil in the U.S. and world economies, I would not risk destabilizing the U.S. economy. Thank you, Brett. Thank you. I do think you have to give him credit for the candor, right? Like, that is what is motivating me. But did he realize what he was doing? Unclear. Right. Very unclear. Okay. So those are all great picks. I am going to mention sort of a deep cut, but Justice Jackson's dissent in Boston versus Illinois, which goes back to earlier in the term. And it was kind of this, like random candidate standing case, but it was excellent. I think it was for her and Sotomayor, but not Kagan.

and it just had like some pretty profound like meditation on whether rights to participate in sort of democracy is really something candidates or really the voters actually like should be able to like invoke the jurisdiction of the federal courts to protect and I thought it was really profound and sort of connected to some of her writing actually in dissent in the Trump versus United States immunity case from two years ago anyway so those I thought I agree so demire had a ton of really sort of banger dissents in particular in the immigration cases that you already mentioned lea I also thought she had a great dissent in Slaughter, which I was very surprised, honestly, that Kagan did not get that one or write separately. She is, like, dissented in the court's really big recent cases about presidential removal power and kind of, you know, institutional structure kinds of questions.

But Sotomayor was great. Yeah. So my choice for the best dissent is really actually, I think, technically a concurrence. It was KBJ's concurrence in the birthright citizenship case. But it is a dissent to Clarence Thomas, to who. his existence. Not to his writing. Just to him, I think. And I think you're on to something. I do. I mean, I do kind of love it when she sort of like makes clear to him like, no, we're not going to do it this way. Like, you're not the only black person on this court. We're going to hear some real diversity of thought.

And we're going to do it this way. So I loved when she really took it to him like, hey, tell me more. about the 14th Amendment being race conscious. Like, let's talk about it again in some other contacts, shall we? Just banger, bang,er. And honestly, I read the concurrence in that kind of voice like, hey, playboy, what are we doing here? Oh, okay. All right.

It totally reminded me of you, Melissa, predicting when she joined the court that they were going to clash. And it was like the kind of the most intense of their, I mean, obviously as well in SFFA. But this was even kind of more pointed, the sort of joining issue. And also just like, obviously, I guess this is what we're going to think. But like, to my mind, it wasn't a close question who prevailed where you look at the full sweep of his jurisprudence. Like he looks insane and ridiculous to like to say this is we're going to use race conscious.

You're stealing my thunder. You're stealing my thunder. She panned him in the U.S. reports. Completely. Yeah. That's great. Okay. Next category.

Under the radar, worst opinion. could be majority concurrence or dissent. Okay. So, yeah, I actually did think that kind of the Kavanaugh in learning resources, the tariffs case. Curtis Wright, 2.0. Yes, and he also brought that energy to his majority opinion in ExxonMobil, the Cuba expropriation case.

But it was just a pretty, you know, I don't know where the rest of the court is going to be in like the kind of big future executive power cases, but it scares me that Kavanaugh is on the court with the vision of the presidency that he has. has and I thought that it was really on display in his dissent in the tariffs case. And obviously Trump noticed it. He was like, add a boy. And I don't think it was an accident that Kavanaugh wrote something that was going to get him noticed by Trump. And, you know, as Melissa, you already said, I think it is pretty clear he would like to be the chief someday. I don't know when he hopes that will materialize. But I really fear in the same way that watching Todd Blanche audition

to get to get the actual job of Attorney General has been wildly corrosive. to the rule of law, I worry that we're going to see something similar play out with Brett Kavanaugh. Get therapy, right? Like, you do not need to turn your job as a Supreme Court justice into a popularity contest for a pick-me. Okay, just as Sam Alito cannot support the irresponsible escapade that is Fourth Amendment rights, I cannot support the irresponsible escapade of listing only one under the radar worst opinion. And so here are my nominees. Justice Kavanaugh's writings in both Barbara, the birthright citizenship case and BPJ, the transbands case. So in Barbara, this is going to be a little in the weeds, but it was just so dumb, it blew my mind.

So he writes that the Constitution should be applied in ways where you apply the underlying principle to new factual circumstances. And it's like, okay, fair enough. But originalists do that by first identifying what's called the semantic substantive content of the underlying provision. He never does that. He just says, and I'm going to go ahead and identify free-floating exceptions without telling us what principle he is applying that is in the text. Okay. Then there's BPJ. Both of these writings are both dumb and evil, and so I wanted to highlight one particular quote in BPJ, where toward the end of his opinion, he writes, quote, no student athlete on either side of the issue, whether a biological female or transgender deserves to be ostracized or vilified, end quote. This is peak. They're a good. good people on both sides. Like, you need to also consider the fact that people discriminating against trans people are being discriminated against and are being called out for discrimination.

It just encapsulates that. Under the radar, Trump versus Orr, the previous shadow docket decision, where, you know, they allowed the Trump administration to move forward with requiring State Department to issue passports that reflects sex assigned at birth. Circular logic, just horrific. We talk about this in our Scermetti paper. Yes. Yes.

Yeah. Yeah. Yeah. So I won't go on there, but did want to recall that one. And then Justice Thomas's separate writing in Al Ocho Lado, where he hypothesizes that even if Congress hadn't authorized the president to decline to admit asylum seekers under certain circumstances by blocking them from crossing the border, maybe the president could just do that anyway.

All right. Those are all great. So mine might be slightly surprising. Maybe not, just depending on how well you know me. I really hated Justice Thomas's separate writing in Hamani, where he's, again, as you said, in an earlier episode, Leah, Jonzing for some Commerce Clause kink. In case you didn't know, listeners, this court and earlier courts, the Rehnquist Court, really did a number on the Commerce Clause.

So we basically kind of whittled that down already, but not enough, it seems, for Justice Thomas, who wants to take us all the way back to EC Knight, which is a case from the Gilded Age in which they took a very formalist understanding of commerce, effectively, to eliminate any prospect of federal regulation of the economy and markets and production. So Justice Thomas, again, like he is so instrumental about just pursuing his own. own pet projects. And there was no, this was just not necessary here, but he put it out there so it'll get farmed off to the Fifth Circuit to be husbanded into some kind of usable theory to further dismantle the prospect of government regulation. So good on him. I will also say Neil Gorsuch's concurrence in the learning resources case. That's a good poll. Fucking banger, right? I will just say, John Robertsworth's the majority opinion. It's actually a very spare majority opinion kind of gets through it. He does advert to the major questions doctrine. Note that

Justice Kagan says that case could have been decided as a straightforward statutory interpretation question, no need to get into the major questions doctrine. That is your tell that the real winner in learning resources was the court, which got to double down on the major questions doctrine. But that win didn't seem to be enough for Neil Gorsuch, who had to write separately to explain why the major questions doctrine was such a great idea. And I'm not sure he succeeds in vindicating the major questions doctrine. He does succeed in reminding me of why I don't like him. I just want to remind our listeners that in a rejoinder to that separate writing, Kagan had one of the more savage footnotes where she accused him of suggesting that she was actually

applying the major questions doctrine and said something like, given how strong he wants there to be converts to major questions. I almost regret to inform him that I am not one. It was just, yeah, who, I can't believe that was this term. I know. I feel like it's been a lifetime. Yeah. Okay.

It was like, what, February? My God. Okay. So this recap is approaching a lifetime. So we should now switch to just discussing some summer plans for the podcast. Just so you know what to expect. Obviously, we are still going to be in your ear holes with a quarter. not regularly hearing oral argument or releasing opinions and argued cases. The episodes will cover

legal news, what's going on. A lot of it may involve the court. And there will also be some additional special segments. We're not all necessarily going to be on all the episodes as is usual over the summer. So we get to do strict scrutiny and friends, which we're always very excited about. And you should stay tuned for some bonus episodes in August and September. So not just one episode per week, but two. And we're super excited about these. Are we allowed to tease that one set might be about hot SCOTUS reform summer slash September because we just tease that. Okay. And then one other note just on summer plans, you know, obviously there is this uncertainty and prospects that Sam Alito might retire. We scatter for the summer. We try to take some vacations. So you might not

get something immediately from us and or something from all of us, but don't worry, you will hear from us, all of us at some point. So for now, while we are waiting news about a potential Supreme Court retirement, we'll just highlight some of the ongoing discourse surrounding potential Supreme Court nominees. Here's one take on what to look for in a possible Supreme Court appointment. I just want dumb justices who will fall in line, right? And not justices who think they're the smartest people in the room like Amy Coney Barrett or justices who care only about their image like John Roberts. Yes, that nugget is from former clerk to Neil Gorsuch, Mike Davis, current leader of the Article III project.

Also just wanted to note the horrific, absolutely horrific vitriol that the right is directing at Justice Barrett over birthright citizenship. One example is Matt Walsh posted on the bad place that the worst Supreme Court justices of all time have all been women. That's just a fact. Republican presidents should take the hint. On the Barrett sort of taking incoming, this is, I can't remember if we said this in our emergency episode, but we definitely talked about it offline. It's one of the many things that makes it so wild that Brett Kavanaugh decided to include his idiotic concurrence on the constitutional question. He could have given her some cover. Barrett some cover, and he chose not to. And I hope

she remembers that. I think she will. Should we do our favorite things? Yes, let's do it. Okay. Well, I think it's probably good to end on something of an uplifting note. This was a bleak conversation and a very bleak term. And unless there's some major change in the composition of the court, that's going to be the case for some time. So we got to find our inspiration and joy and comfort elsewhere. And for me, that has been you both, Leah and Melissa, in addition to our team, Melody and Michael, our incredible intern, Jordan, the live shows we got to do this year in California, in New York. I guess DC was, I guess that was this term. Yeah, DC for CricketCon, Chicago, the amazing Sophie, who coordinates all things tour,

and then all the listeners we had a chance to meet. That really was a source of great joy this year, and I'm grateful for it. And I found it sustaining. And I also have found great peace in the last three days when I've been on the shores of Lake Michigan going for long runs and searching for beach glass, which is sort of my meditative happy place,

and I'm here for another couple days and so happy to do it. That's why I have this sort of treehouse background. Lake Michigan is yonder right behind. behind me. So those are my favorite things for now. This is your own Tom Lake, Kate. Exactly. It is. It is. So I echo all of that. Working with all of you and our larger team is just one of the both ways of coping, but also genuinely positive things about this timeline. I also want you to note that we have kind of expanded our YouTube presence and video output. So we've been working with Eric Schute, Johanna Case, and Kenny Moffitt just to help us

get more video content out. And so that has also been great. And then I guess the other thing I would say is it genuinely feels to me like there is a possibility that the needle is truly moving on the Democratic officials and Democratic establishment understanding about what is needed to address some of what ails our constitutional democracy, including on Supreme Court reform, and getting to hear and see, right, the evolution in some people's views, I think, has been very encouraging. So I will. plus one. I guess it's plus two now for our incredible team, Melody, Michael, all of the folks at Crooked. Jordan, who has just been amazing. Jordan, we literally talk about how lucky we were that you

cross-pass with us. It was just truly fortuitous and amazing. You all make doing this so much fun and make all of these trains. And there are a lot of different trains. We got a lot of trains going on. you all manage to make it work out seamlessly. So that is one of my roses for all of this. I guess we all heard what the thorns were because this term was a banger. I agree that the needle is moving on court reform. That is really exciting to see. I would like to see more of it in the actual discourse around the midterm elections. I think that is coming. And I also want to shout out the folks I've met just this year traveling for the book. I'm very excited that the book is back in the New York Times bestsellers list this week. Thank you to all of those who bought the book

in celebration of America's 250th anniversary. My favorite purchase, though, came from a listener named John, no last name, who wrote to me to say this. Thank you for writing this fine book and your contribution to strict scrutiny, to which I listen regularly. After buying a copy for everyone in my circle, I racked my brain as to who would be another deserving recipient. You, of course, deserve all of these royalties for your support of civic understanding, but I thought you would be amused that I came up with the perfect recipient. You can now cross him off of your X-mas list. Please see attached. And John included an Amazon receipt for the book.

the United States Constitution, a comprehensive and annotated guide for the modern reader that was sent to one first read to the chambers of Samuel Alito. Thank you, John. Was it from John Roberts? I didn't want to out him, but okay. Thank you to listener John for sending the book as a gift to Justice Alito. Justice Alito, I hope you enjoy it. Maybe you will have more time to read the Constitution. If you have more spare time on your hands, just maybe. It's a bit falling here. And speaking of John Roberts, we know this fucking guy quite well. Chief Justice of the Supreme Court, John Roberts. Nothing says I'm not political like spending the last two decades

remaking American politics. On the latest episode of this fucking guy, comedy writer and hysteria host, Aaron Ryan, dives deep into the origin story of Roberts, the man who brought us, the Citizens United ruling, gutted the Voting Rights Act and has spent his career moving our country toward oligarchy, all the while claiming he's above politics. Watch on YouTube now or, listen in your hysteria feed. Stick Scrutiny is a Cricket Media production. Our show is produced by Melody Raoul and Michael Goldsmith. Jordan Thomas is our intern.

Our team includes Matt DeGroate, Ben Hethcote, Johanna Case, Kenny Moffat, Eric Schute, and our music is by Eddie Cooper. Our production staff is proudly unionized with the Writers Guild of America East. Quick question. Are you politically engaged and spiritually exhausted? If you said yes to both, welcome home. I'm Erin Ryan. And I'm Alyssa Master of Monaco.

And we're the host of Hysteria, the podcast for women who care about democracy culture and not losing their minds in the process. We break down the news, call out the nonsense, and spotlight the women actually fighting back on Capitol Hill, in classrooms, and everywhere the stakes are high. It's sharp, honest analysis featuring women's voices with humor and zero handholding. Listen to Hysteria wherever you get your podcasts and watch full episodes on YouTube.