Strict Scrutiny - The Constitution (Melissa's Version)

Episode Date: May 11, 2026

Kate & Leah talk to Melissa about her new book, The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader, or, as we like to call it at Strict HQ, The Constitution (Melissa���s Version). Then all three unravel what happened with the Virginia Supreme Court invalidating voter-approved redistricting maps, along with other voting-related shenanigans in the wake of Callais. Finally, they talk with Nancy Northup, president and CEO of the Center for Reproductive Rights, about why and how anti-abortion forces are once again targeting mifepristone.Favorite things: Kate: Yesteryear by Caro Claire Burke; NYC Mayor Mamdani skipping the Met Gala to hang out with fashion industry workers; Chris Hayes’ interview with Molly Crabapple on Why Is This Happening?; the Artemis II crew answering kids’ questions on The Daily Leah: Middle of Nowhere, Kacey Musgraves; Dancing on the Wall, MUNA; “Who Will Stand Up to the Supreme Court Justices?” By Niko Bowie and Daphna Renan; “John Roberts Believes in an America That Doesn’t Exist,” by Jamelle Bouie Melissa: Amy Sherald’s Met Gala look Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2026! 6/20/26 – New York City Learn more: http://crooked.com/eventsBuy 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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clarity, she said, I ask no favor for my sex. All I ask of our brethren is that they take their feet or fall next. Hello, and welcome back to strict scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. I'm Leah Littman. And I'm Kate Shaw. And we have a very special episode in store for you today. The highs are high, the lows are low. First, the highs. To mark the release of Melissa's book, the U.S. Constitution, a comprehensive and annotated guide for the modern user in your eyes right now. This is not a book you can snort.

It is. No, it's a, it's a manual. And so I think of it as a modern reader. As a user guide. We'd like you to read it. Kate, are you a reader or are you a user? Of the Constitution? You might have told on yourself.

Both. Kate likes to shred this and snort it off of toilet seats. Okay. When the RF Kate, as we call for it. Not above it. Wow. Thank you. I think. R. F. Kate. If it's the Constitution, I guess I'll proudly snorted. Anyway, sorry I just miss titled, as she was saying. We are way off the rails and it's like 60 seconds in. But that I think, dear reader slash listener slash uter, user.

Did you just say you're to say uter, Kate? Uter. I don't have time to take this over, so we are just pressing on. Anyway, we have a wonderful discussion. of Melissa's book that we recorded earlier in a soberer moment on deck. So stay tuned for that. And then we'll get to the lows. And that means illegal news, including an unfortunately long segment on voting wrongs, where we'll talk about the Virginia Supreme Court decision invalidating the legislative map that was selected by Virginia voters. We'll also talk about how the Supreme Court, the United States Supreme Court, made its anti-voting rights and anti-voting

Rights Act decision in Louisiana v. Kelle, somehow even worse. These guys are making it It's super easy for us to continue our recently launched recurring segment, the Kaleigh catastrophe. And then we'll talk with the president of the Center for Reproductive Rights, Nancy Northup, about what's going on with Mithopristone. But first up, Melissa explains the Constitution. We get to have a little fun and turn the tables on our very own Melissa Murray. As you all know, she's usually on this side of the mic asking the questions with us. But today, we're putting her in the hot seat to talk about her new book, the U.S. Constitution,

comprehensive and annotated guide for the modern reader, which was out Tuesday, May 5th. Melissa, thanks for letting us do this to you. Congratulations on the book. And welcome to your own podcast. Thanks for having me. I mean, you didn't say you're going to do anything to me. So this is a little alarming. Well, we're just getting started. I feel like I'm at the Supreme Court. People are doing things to me. This is going to be much more fun. Don't worry. I'm sorry, I still don't have a physical book else I would hold it on my shoulder for this I know, I don't either. But I'm going to just sip from my constitutional AF mug.

And I do have actually by the time the episode drops my multiple copies I've ordered should arrive. And if you listeners haven't yet ordered your own copies. And Sam Alito, if you also got one, that may or may not be for me. Yeah, at least one. It's not unconstitutional to give gifts. Exactly. To your very favorite Supreme Court justice. And you know since you wrote the book.

All right. So good segue to Melissa's book, and let's start at the very beginning of the book. And you open it with a very astute observation, which is that Americans frequently invoke the language of the Constitution, phrases like, it's in the Constitution or that's a violation of my constitutional rights. And you remind us that this abiding faith in the Constitution, I'm quoting here, and constitutionalism was not inevitable. It was built over time through institutions and through norms. and here editorializing whether you think that relationship with the Constitution, this kind of abiding faith and constitutionalism as our sort of shared civic religion, is good or problematic or some combination of both. It seems uncontroversial to observe that the institutions and norms that have created this relationship with the Constitution are under increasing threat. Okay, so with that wind up.

When and why did you realize you wanted to write this annotated Constitution with your co-author, James Madison? And at what point did it stop feeling like a kind of a traditional book project slash collab and start feeling like different and also like something, you know, maybe more urgent? So it's a really good question. I also say the first thing the book starts off with is a dedication. And I dedicate it to my parents who were Jamaican immigrants and to my children who are the descendants of those Jamaican immigrants as well as individuals whose own grandparents were enslaved people. And I thought that was actually important to note because. we are just living in a moment when this country feels sort of riven by anti-immigrant fervor. They're real questions about whether minorities have a place in the society.

And I felt it was really important to make a claim for my parents, for myself, for my kids, that this land is ours too. And so let me start there. Where did the project come from? Honestly, it was born in these Twitter streets. So, as you know, there was a period prior to January 2020. when everyone is in the Twitter streets, and I was too. And I was on Twitter, and Ellie Mistal, I mean, texted me and said,

you've got to see what Luke Campbell is posting. And if you don't know, if you're not from Florida and you didn't grow up in the 1990s, Luke Campbell is the lead rapper for two live crew, Uncle Luke, Luther Campbell. And he's a pretty storied rapper, but he was in these Twitter streets being wild about what Joe Biden should do and what Joe Biden shouldn't do and what Joe Biden needed to do. And I was reading all of his prescriptions for Joe Biden. And it occurred to me that the president couldn't do any of the things that Uncle Luke wanted him to do. And I was like, wow, Uncle Luke knows surprisingly little about executive power. Maybe he's a Republican. And I thought if someone like Uncle Luke

doesn't know. Imagine who else doesn't know what the scope of executive power is. And then Simone Sanders Townsend and I did that special for MS Now, where we talked to millennials about all of the things they were concerned about with the 2024 election. And when I talked to a lot of those younger people, it occurred to me that they were of the generation post No Child Left Behind, where public school curricula were really divested of lots of things, art, music, but most crucially, civics education. And they, you know, through no fault of their own, had a really thin understanding of how the American government works. And so I thought maybe there's something to this. Like, you know, maybe we should be engaging with the Constitution. It was written to be read by the

people. And more importantly, maybe someone should try and explain why we have the provisions we have, why we have the Constitution we have, and what's the point of this whole thing in the first place. But yes, it all started with two live crews, Luke Campbell, and his very lengthy list of things Joe Biden should do. I really hope he has read the book because he's running for Congress right now. And I at least want him to know what Article 1 says. If your publisher has not sent him a copy, they need to get on that right now. I had no idea this story traced back to Twitter crew on Twitter and the old Twitter. I feel like doesn't everything?

Really? I guess maybe many great stories. Okay, so one follow-up, and then I'll give Leah the mic, which is to take us out of the Joe Biden moment and into the present moment. And near the end of the preface, you write, quote, as we face the prospect of military presence in our cities, questions about the debt ceiling, birthright citizenship, and impositions on freedom of speech and freedom of the press, it is more important than ever to understand the document that has scaffolded our government and indirectly our lives. Melissa, you're such a good writer. So those are all highly salient and alarming ways at the Constitution. is being pressure tested right here and right now. And so, will you just talk a little bit about sort of beyond Uncle Luke, who the modern

reader referenced in the book's title really is in your imagination? Like somebody who already follows the stuff and knows a little bit of constitutional law enough to be dangerous, someone who is just now realizing they need to set a foundation, like talk about your modern reader. I think the modern reader is meant to be aspirational. It's sort of anybody right now who is looking around going, like, can they do that? Is that okay? And I think there are a lot of people right now who are looking around asking, can they do that?

And is that okay? And, you know, this book is for you. I did not write this for law professors. I did not write it necessarily for law students. I wanted this to be a book that could be accessible to people without law degrees, people who are in high school, just kind of wondering. Again, like the absence of civics education, I think, is really pernicious. And this is one way maybe to fill that gap.

could also be for people who think they know something about the Constitution. I bet they don't know what they think they know. And I bet their knowledge is probably incomplete in some ways. I know mine was. And it was really a learning experience to do this. I mean, like there are so many parts of the Constitution that, yes, we engage with as law professors, but so many parts that we don't. And they're all kind of interesting. And there are all of these really amazing stories around the various parts of the Constitution and how they came into being. And so, you know, part of it was just kind of this really fun treasure hunt trying to figure out, like, how do we get this? What does it do and what is it for? Just with respect to the people who are asking, can they do this or can this happen, you know, making this book available now reminded me of an episode we did earlier this year with Kim Sheppily who talked about protesting authoritarianism and autocracy in Hungary. And people did so just by quoting laws and their constitution. And so making this information, accessible to people is a way of empowering them and also to enable what, you know, academics call popular constitutionalism where people can make claims about the Constitution

and in so doing influence what the Constitution means, right? Like shape its meaning. No, I think that's exactly right. And, you know, it's not just like reading the text. I mean, you could get one of those free constitutions and read the text. But I think what this does in providing sort of a clause-by-clos annotation and also history around how some of these various provisions came into being, it reminds us that we're not the first to make claims on the Constitution. Like, this isn't an unprecedented enterprise. Lots of members of the public have made claims on the Constitution before and have shaped constitutional meaning. I mean, we talk, I think the founding is very overdetermined in constitutional law and theory. The reconstruction amendments, you know,

less overdetermined. But we rarely talk about the amendments from the gilded age. So this is the 16th, 17th, 18th, and 19th amendments. And they're literally born in this fervor of populist unrest. I mean, people are mad at the turn of the century about the fact that, you know, oligarchs are running amok. And there's this huge consolidation of wealth. And the American government is raising revenue by imposing tariffs. And the working class hates it because it's regressive. And they bear the burden of it disproportionately. They want an income tax to make the wealthy pay their fair share. They can't because Article 1 prohibits it. So they start agitating. And there's a Supreme Court decision that makes it impossible to have an income tax. And they start agitating

against that. And ultimately, they get the 16th Amendment, which changes Article 1 in order to allow for Congress to levy an income tax and to do progressive taxation. And that is born by the people. The 17th Amendment is the popular election of senators. They get screwed up a little bit. with the 18th Amendment and prohibition, but then they come back with the 19th Amendment where they literally double the size of the electorate by enfranchising women. And that's all through popular agitation and activism. And just on that 17th Amendment in particular, you know, you mentioned this as a kind of underappreciated space of constitutional change and empowering people. You know, imagine if people knew more about the 17th Amendment and the history behind it.

Because the 17th Amendment said state legislatures aren't going to pick senators. People are. I think that understanding that history and what it was getting at provides yet another angle. For gerrymandering. Yeah. To understand why Calais is so problematic, right? Because the idea that, okay, state legislatures can't pick senators, but they get to pick effectively your house delegation by extreme gerrymandering. Right? Like, you are allowing people to see connections and understand and to create like our story as a people.

And that's just super important. It's exactly right. Like I said gerrymandering because I view Calais as sort of. the confluence of this interest in partisan gerrymandering, this new entitlement to partisan gerrymandering with the longstanding effort to disenfranchise minority voters. And, you know, there is this period at the turn of the century where people are just like, no, we want to do it. And it actually starts at the state level. Like, they actually get what is effectively popular election of senators in many states before there's this formal amendment. And that's a lesson too. Like this happens at the

19th Amendment, were they enfranchised at the state level women, even before there's national enfranchisement. These things can happen incrementally. Some change is better than none. Yeah. And that's literally exactly what I was going to say. The story, the state level sort of origin story about the 17th and the 19th amendments, I think just like is kind of an important reminder right now. Big national change often and maybe more often than not starts with small, local and state level change. And to a point you made on our last episode, Melissa, quoting Cheryl and Eiffel, like this is a very long game we are playing right now. But making small incremental change against state and local change to our electoral system and sort of otherwise,

those are the building blocks of federal change and constitutional change. And that's where we have to be working right now. Yeah, I think I said something like, you know, our children and grandchildren will rest under the shade of trees they did not plant. Entering from wells, they did not dig. I have no illusions about whether or not we are going to see this kind of change in our lifetimes, but I'm perfectly happy to be committed to doing the work now because this book shows. There were people who didn't live to see the fruits of their labor, but we are living with the fruits of those labors now. And that's okay too. Yeah. Yeah. Okay. So here's strict scrutiny, as you may know, we've always been up front that we're not coming at the law.

from a place of neutrality. It was really, you know, one of the founding premises of the podcast. And we think it's important to have honest, irreverent, sometimes bleak, hopefully still engaging in fun, conversations about the Supreme Court and the Constitution. And the book seems to be doing something similar, but in a very different format and register. So how did you find it balancing historical narration with your own commentary in an annotated guide like this? And how did that tension shape the way you structured the book? So I actually, I did another podcast interview about the book, and the person was like, this isn't like strict scrutiny in a lot of ways. Like, you know, there are no cuss words here. And I was like, that's true, true. That's very fair. I did think I tried to be a little more straight down the middle. Like, you know, here's what one person says.

Here's what another person says. In part because while I would love for more modern readers to be of our view, I just actually like more modern readers to recognize that we're really going off the race. in terms of how we think about constitutional culture and just, like, actually get engaged. And so however you choose to enter this space, like, I'm just happy to be the conduit. But there were some things that I think I couldn't be neutral about. And, you know, one of them was that I was very forthright about the way in which slavery is never explicitly mentioned in the original constitution, but it is literally all over the page.

It's almost like a palimpset. And the compromises they make, I mean, we talk about this. in constitutional law to some degree, but I don't even think we even scratch the surface of how durable the compromises over slavery really are and how, like, transformative. I mean, the whole idea that they're, like, making this bargain. Like, you get 20 years to keep importing slaves. Are you good with that, Southerners? Like, is that going to be enough? And then we're going to have Congress pass a law in 1808. And we're going to make it so no one can come and amend the Constitution before 1808 to keep you from enslaving people. We're going to do that for you. And then we're

going to stop the enslaving, right? And they're like, no, we're just going to shift from importing the slaves to making them ourselves. And I mean, just like the perniciousness with which this institution survives and the compromises, they strike to appease the various enslavers in their myths and how we kind of live with that in our national DNA without ever talking about it and how it carries over into the rest of the Constitution in lots of different ways. And we can't shake the residue of that. We should just be honest about it. Yeah. Strict scrutiny is brought to you by Zbiotics pre-alcohol. This year, I'm focusing on a small shift that makes a huge difference. Effortless presence. I know it sounds counterintuitive, but for me, it means planning ahead so I can truly live

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So in terms of that's the original constitution and obviously there are, you know, there's both the incredibly important reconstruction amendments, which we'll maybe talk about again in a couple of minutes, but just kind of a lot of attention in the book, rightly paid to changing the constitution and both constitutional amendment and constitutional change through other And you sort of talk about kind of the book's working theory of constitutional change as running through, you know, three kind of distinct channels. So you have the court, Congress, and then what we've already alluded to, just ordinary people working at the grassroots level who can read and interpret the Constitution. And here I'm quoting you, as importantly, find it wanting and agitate for change. So I think it's fair to say that most constitutional law books focus on the first two and really on the first one.

It's mostly the courts. There's a bit of Congress. and there's not that much about kind of the people working to change the Constitution. So what changes for a reader of the book who has been kind of handed this sort of like equal weight or stature in terms of being an active participant in constitutional change? And sort of where in the book would you say you most focus this kind of like popular constitutionalist vision? I think there are lots of different discussions of various amendments and articles where you do see that kind of popular. influence and the promise of popular engagement. Certainly those amendments that are passed during the Gilded Age, so the 16th through 19th. Also, some of the more the later amendments,

you know, the 25th Amendment, which deals with the whole question of presidential secession and presidential incapacity is literally born of the national trauma of the Kennedy assassination. And, you know, that's a moment that obviously is led by Congress, but it gets buy-in because everyone is like, oh my God, what happens if the president isn't a coma? Like, that could have happened. And then I think people are really thinking about all of those possibilities. There's also, I think, you know, the kind of hilarious story behind the 27th Amendment, you know, it was initially proposed as part of the 12 prospective amendments that were going into the Bill of Rights. Two of them ultimately don't get passed. And they sort of linger. And, you know, back in the gilded age,

Ohio becomes a vote for what will be the 27th Amendment, but it lingers for a while. And then this intrepid college student has to write a paper and he decides to write about constitutional amendments that never happened. And he writes about this compensation amendment. And he gets a C on the paper that the professor is like, do better. And he's like, okay, I can do better. And he starts trying to get this amendment ratified. So he starts calling state legislatures. And, you know, then circumstances happen. Congress has this big scandal involving check kiting and the House Bank. And suddenly there's all of this interest in passing this amendment that limits Congress from giving itself a pay raise. And this kid, Gregory Watson of the University of Texas at Austin, winds up getting the last amendment into the Constitution over 200 years after its first proposed. And happily for him, the University of Texas at Austin thought this was a Herculean task and they changed his grade from a C to an A. Students, if this doesn't inspire you, I'm not sure what will. Get out there.

You don't like that grade, right? You change the Constitution. And Melissa has provided you the building blocks to do so. I mean, like, if you can change the Constitution, I might rethink your grade. Sure. Okay. So the book is often aspirational, sometimes even Kate Shaw-ish optimistic. I know.

I know. About what? This is like wicked. I've changed for the better because of you. Well, on the other hand, on the other hand, Elphaba, say more. I am Alphaba, I will enthusiastically embrace my Alphaba status. You also don't pull any punches when it comes to its flaws. You know, as you were kind of alluding to previously, you're very clear about the roles that slavery, sexism, elitism, and other forces played in shaping the document and its legacy. You know, do you think those influences are still understated and how we talk about the Constitution and how did you approach incorporating that into the book? One, we don't talk about the slavery in the original constitution at all. Like, it's perfect.

That's fantastic. James Madison, you're doing great, sweetie. I think we should grapple with the fact that they are making compromises in order to keep people enslaved and full stop. That it's all over the original document and we should talk about that and talk about where and how and why. And it's beyond just simply representation in the House of Representatives. She also talk about their deep-seated fear of people, like non-wealthy, non-wealthy, non-wealthy, non-slave-owning, non-property-olding men. Like, they're deeply concerned.

I mean, the Constitution, as originally written, is a document that is a lot about minority rule, like the electoral college, the way the Senate is initially elected. Like, all of that is about a fear of the people. And we are constantly, I think, working toward dismantling the kind of elitism and racism that undergird the document. And that's the point of Congress. and getting the authority from the Reconstruction amendments to pass legislation like the Voting Rights Act.

It's why I think so many people are alarmed by the decision in Louisiana versus Kelly because we specifically authorize Congress to be able to do certain things to work within the confines of the Constitution to create a more perfect union. And now we have six people on the Supreme Court rolling that back in a way that's inconsistent with the idea of democratic rule and taking cues. not just from the president, but also from Congress. So next question, we started off by talking about kind of popular invocation of the Constitution. And I think those kinds of invocations are largely kind of about the rights provisions in the Constitution, right? Like my Fourth Amendment rights,

my First Amendment rights. So I think that those are the parts of the Constitution, or at least the principles in the Constitution that people are the most familiar with or sort of reach for the most easily. But I think that we are these days, Americans sort of seem to be getting, you a weekly refresher on the more structural provisions of the Constitution, right? Like you mentioned, Uncle Luke, and Article 1, right? The Congress creating article of the Constitution. Article 1, 2, 3, you know, kind of as we are all faced with the latest developments from the executive branch, the relative inaction in Congress and obviously the Supreme Court. So I guess how should a better understanding of those articles of the Constitution change the way we think and talk about the separation of powers and sort of How do you hope it changes the way kind of public discourse and public understanding sort of looks in terms of what is happening right now? I think one major point of the book is that the question of structure is not divorced from the issue of rights. And certainly not among those who framed the Constitution. Like, you know, they created this original document without many explicit protections for individual rights.

And they did so because they really did believe that if you divided governmental power, you would be protecting rights. Like they believe that the states would protect the rights of citizens. They believe that if you did not allow power to be consolidated in any particular branch, you would be protecting the rights of the people. And, you know, they had good reasons to settle on that kind of structural fix because, you know, one thing I say about this is the Constitution is kind of a trauma-informed document. Like, they are working through shit. You know, they had the whole colonial period where they have the British Parliament passing these laws that make their lives unbearable, intolerable. They have the Mad King who's doing all of this stuff. So they really fear the prospect of a too powerful federal government.

So when they sit down, but they also recognize that you have to have a relatively powerful federal government because they have the trauma of trying to fight this revolutionary war with this Articles of Confederation that's basically like a friendship bracelet between 13 states. And so they want something that will bind them together that will enable them to have a government that works, but they don't want anything that will allow power to be consolidated in a way that can be used against the people. So they see structure and rights going hand in hand. Maybe not as perfectly as some people would have liked them to, but they get that. And they're journaling through it in this constitution. And I think that is something we should understand in real time. Separation

of powers questions, like whether the president has the power to do X or Y, it's not just about the president's relationship to a coordinate branch of government. It's about the broader relationship around the idea of limited government as a means of preserving the rights of the people. So have writing the book changed how you think about teaching con law or how you think con law should be taught? And not just writing the book. I mean, you know, I think the work that Kate and I did earlier this year in that Supreme Court Review piece on Scermetti really focused me and thinking, you know, maybe I should do more with executive constitutionalism in my con law class. I taught a pretty traditional.

law class, which focused a lot on the court. I think that's a mistake right now. And, you know, I'm happy to admit that my course will be updated to reflect the changes in our landscape. And I will be talking more about how the administration is advancing a particular vision of sex equality using these executive orders. I think the work that the three of us did in what we are calling the juridical presidency, which is forthcoming in Northwestern, maybe it'll have a new title. But this whole idea of presidential settlements being a war. work around and being a separate kind of separation of powers problem is something that I'll talk about in structure. So, you know, just the work that we've done together, I think, has really

illuminated for me how I might change the course. But, you know, one of the things I always do in my course is the first assignment is to read the Constitution. And, you know, I don't ever assign my own work. I don't think I'll ask students to buy or read this book, although I'm sure my publisher is like, what? Definitely. I can buy this book. But I do think I might just assign the preface, just as a reminder to them that it's not academic, like what we're doing. Like, it is academic. Obviously, you're in law school. But this is a bigger enterprise than just getting to the end of the semester. It definitely is. Okay. One more question on the book, which is you could obviously have written an entire book and people have about any one article or one amendment. And I'm curious, you know,

you had to make choices about what to include and what to cut. Were there any particular annotations or, you know, stories or characters or anything else that you ended up? kind of like leaving on the cutting room floor or just like ideas or debates that you wish you had more time or space to explore? So the 19th Amendment, I wanted to talk more about some of the women who are involved there, not just, you know, the Crystal Eastman's and Annesmaulhollins and Elizabeth Cady Stanton and all of those people, but, you know, people like Mary Church-Torrell, like some of the black women who were involved in the Black Women's Club movement that did a lot of this work around the 19th Amendment and weren't really included by the traditional suffragist crowd.

I think we had to take out some of that. There was a lot of effort, I think, to deal with some of the more technical parts of the Constitution and make it more digestible and reader-friendly. I mean, like, some of it's just like, you know, the decapitation parts of Article I'm just like, I spent a lot of time just trying to make that user-friendly. But there are just a lot of really good stories. I mean, I think we forget. Like, they're just really amazing and inspiring stories.

Like, I love the story about how the 19th Amendment finally gets passed because this Tennessee legislator, he was prepared to vote against the amendment. And then his mother writes him and is like, I think the fuck not. You will vote for this. And he does it because he's a good boy. We need more good boys. And that scene is dramatized in the softs, the musical sucks, very well. A good boy.

Okay. So quick, like. lightning round. We are going to put you on the spot with four questions. Maybe we will chime in as well. First, what's one constitutional provision you'd jettison? Electoral College. Oh, I was going to say the same. Okay. If I can't do that one, I would do a second amendment. Second amendment. Okay, yeah. Okay. All right. That's a good new constitution. I like it better already. Second, what's one you'd add if a contemporary populist movement were to take shape? That's a good one. Maybe you're right to education. I always think just making it easier to amend. Like it's sort of the kind of cheating like if you had a genie and you wish for like a thousand wishes. Like you know what I mean? Like maybe that's a cop out. But it just does feel like an elemental problem is that Article 5 makes it so hard to amend the damn thing. So it's hard to choose one thing. But one thing you could choose that would facilitate a lot of other things would be making it easier to amend. Well, you know, an amendment that addressed partisan gerrymandering or any kind of gerrymandering would help get around. I was going to say like proportional representation. You could do.

Or an amendment that told states they had to set up independent redistricting commissions. Exactly. You could do that. That's, I think those are all, D.C. statehood? Like just, I mean, you don't need to do it in the Constitution. You can do it by legislation. But if you make D.C. in the Constitution, why not make it a state in there, too? Or give it, you know, actual meaningful representation in Congress.

The amendments dealing with D.C. are so fascinating because it's so clear how much it's about race. Yes. I mean, it's just, I mean, and Puerto Rico doesn't make it in because there's no. amendment dealing with Puerto Rico, but you could imagine it's likely the same reason. Totally. Okay. What is a provision you leave exactly as written and just tell people to actually read it or interpret it differently?

The privileges or immunities clause of the 14th Amendment, which could be doing so much more work. And no, Justice Thomas, I'm not looking at you as a means of incorporation. Like, it could have done more. It could go further, Justice Thomas, if you know, you know, if you know. I'll just say it's the week after Calais, it just feels like 15th is right there and we're not actually interpreting or enforcing it properly. I would say section five or section two, the enforcement clauses of the Reconstruction amendments. Yeah, yeah, those are those are.

You know, you have this section two of the 19th Amendment, Leah. I think we don't do enough about you and Rickasson wrote a terrific piece in the Georgetown Law Journal about this, which I cited here. Enforcement clauses for the win. All right, wait, last question. Better co-author slash collaborator, Andrew Weissman or James Madison. What if I say, okay, this is no shade to Andrew. I love Andrew. I don't know James Madison. So obviously I would say Andrew Weissman. But if I had to pick the best co-authors and collaborators, it would be you guys, no, hands down. Oh.

So, yeah, Andrew was great. James Madison. Well, you know, we worked fairly well together. Mid. I don't know him. I don't know him. I don't know him. I did go to his house once. I did go to his house once. Had me over. Took the tour. It was great.

Well, this is a probably perfect place to end. Okay, we got to end on a much happier note. I was going to make it happy. Okay, cool. I was going to say some happy things, but he gets to follow because she's even happier. So I wanted to thank our intern, Jordan Thomas, for help. us with this episode. And also just to thank you, Melissa, you know, you said Kate and I were your favorite collaborators. Like, I cannot believe we have been doing this podcast for seven years.

I count myself as lucky every single day to get to work with you and just getting to cheer you on and see all that you are doing is incredible. I know this is what they're saying to each other at one first street. I know Justice Sotom. Sam, you are my favorite collaboration. I love that. Yes. I will at the risk of being saccharine say, yes, the same, wow, we're coming up on seven years in June. We're going to have a seven-year anniversary. We have to throw a party, ladies. We have to throw a party. But I will say no. It is also fun. It is also fun. It is also fun. It is also fun. We are. Yes. Yes. Yes. Oh, that's true. We kind of are. We're doing a solo project like this. So it's like incredibly impressive. But it is a total privilege to get to collaborate extremely closely with both of you. And then it is also kind of fun to sort of step back and then see like if you're doing a solo project like this. So that's like incredibly impressive. of really important contribution. Loved reading it, love getting to talk to you about it, and have both ordered multiple copies

and we'll tell everyone. And I love pitching it for a non. We spend a lot of time with lawyers and law students. And they could use this book too, but that is really not who you are targeting. Many, many, many more people are not in those two categories and need to know and understand more

about the Constitution, and they should all buy and read this book. I agree with that wholeheartedly. I think definitely buy and read this book, the U.S. Constitution. If you're looking for a great gift, bundle for anyone graduating from high school. I would say the U.S. Constitution plus lawless. Like that's a two-up-one. Hey. Hey. First you get like a new neutral take and then some snark.

Like, yeah, why not? Let's do it. And then we either it. Then we light it up, right? You get the neutral take, right? You get to see the Constitution. And then you get to read about what the Supreme Court has done to it. It's a disc track, right? Roll it up and smoke. Yeah. Exactly. All right. First, you pour salt on it. I lick it. Which is the shot, which is the chaser. With that, we have circled back to the beginning. We landed this plane, ladies. Well, Melissa, thanks for joining us on your own podcast.

Thank you for having me on my own podcast. It's great. It's great. Anytime, it's great. Publishers. Please come back soon. People with their own publicity outlets. Great authors.

Really great. I mean, we really do work very hard on this podcast. We do. A. okay to use the platform. to flog the books that we also pour our blood, sweat and tears into. People don't get that. Like, we spend a lot of time doing this. Yes.

A lot of time. And again, it's cathartic, it's gratifying. We think we put something valuable onto the world. But it's a lot of work. And so, damn, if we're not going to also use it to tell you all about the books. Exactly. There we go. The U.S. Constitution, a comprehensive and annotated guide for the modern reader.

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That was a fun conversation about an awesome book. Unconstitutional rights. And now on to voting wrongs. On Friday, the Virginia Supreme Court in a four to three decision ruled that the legislative maps that Virginia voters approved in the recent election cannot go into effect for the upcoming midterms. Virginia voters had approved a set of maps that would counteract Republican gerrymanders in Texas, Tennessee, Louisiana, and elsewhere. The decision rests on something of a debatable, and I'd say dubious, technicality. Virginia voters had previously banned partisan gerrymandering in their state constitution. So to make the new, set of legislative maps and carry out the partisan gerrymander that the voters wanted, they had to

amend their state constitution. Now, the Virginia Constitution has a complex process for amendment. Amendments have to first be proposed by the legislature, then there has to be a general election, and then the amendment can be submitted to the voters to be approved. That process requires there to be an intervening general election, so in between the legislature's proposal of an amendment and the voters approving the amendment. In this case, Virginia said it complied with that requirement. for amending the Constitution because the legislature proposed the amendment four days before election day. However, in a 4-2-3 decision, the Virginia Supreme Court said that that process didn't count because by the time the legislature proposed the amendment, voting had already

started in the Commonwealth. Therefore, the amendment didn't go through the constitutionally required process, according to the court. There wasn't an entire election between the proposal and the adoption of the proposal, and therefore, the amendment couldn't go into effect. This wipes away the four possible additional seats in Congress that the new map might have given Democrats and, again, would have given Democrats a shot of winning back the House. In case you're wondering, a majority of the justices on the Virginia Supreme Court were effectively chosen by the Republican Party. Justices in Virginia are selected by the state legislature, and a majority of justices on the Virginia

Supreme Court were selected when the state legislature was controlled by the Republican Party, and Republicans controlled at least one of those legislatures because of their extreme partisan gerrymander. So do you see how it all works together? It's like, think about that meme of the guy smoking cigarettes furiously while pointing at a board filled with like strings tied together. That's the conspiracy theory. Here it is in action. Well, I mean, reading this opinion, I felt like the picture of Ben Affleck smoking the cigarette outside the Dunkin' Donuts because it's super rich reading the justices in the majority, complaining about partisan gerrymandering when their decision effectively locks in Republican partisan gerrymandering.

The decision is obviously hugely disappointing, and it's a voting wrong because it nullifies an election after the fact. And that's a pretty scary development. If you remember in the 2020 presidential election and the litigation after that election, the Stop the Steele movement and the efforts to undo the election via litigation and in courts were met with firm opposition precisely because courts aren't supposed to invalidate elections after the fact. And no court in the 2020 presidential election was willing to actually throw out votes that had been cast. And this Virginia decision is a scary step in that direction. I know it's not a decision about a candidate.

And yes, it's about the process for submitting an amendment. But still, the Virginia Supreme Court refused to rule on this issue before the vote. I understand the legislature was arguing that they couldn't, but the courts still had the option to. Then there's the fact that other Republican-controlled states are being allowed to do exactly what the Virginia legislature and Virginia people attempted to do, change election rules after an election got started. In Louisiana, Louisiana is attempting to suspend the election in which more than 40,000 Louisianaans already voted. And I will wait for a court, ideally, let's say, the United States Supreme Court, to tell them that they can't do that. They're going to be waiting a while.

Oh, wait, the Supreme Court just encouraged Louisiana to do it. Yeah. This after the fact point is so important. So remember, we talked a lot on this podcast about unsuccessful North Carolina Supreme Court candidate Jefferson Griffith, who tried and came kind of close to succeeding to throw out the results of an election that he had lost, asking courts to change the rules surrounding voting months after the election had, you know, not broken in his favor. He was not successful there, but this does feel like a kind of seal-breaking moment. in the invalidation of an election. Like you said, Leah, not a candidate election, but still a really important one that has been invalidated on the narrowest of margins after the fact. And as you said, it's especially rich in sort of contrast to other states that in the wake of Calais are scrambling to

change their legislative districts after voting has already begun. And, you know, that's not the only double standard that is being applied in the gerrymandering wars. The Virginia Supreme Court remember said this provision was procedurally invalid and it ran afoul of the state's ban on partisan gerrymandering. So, ladies, guess what other state also has a state constitution that bans? Let me guess. Partisan gerrymandering. Let me guess. Is it the sunshine state? Is it my state? Florida. If it's Florida. Melissa is ding, ding, ding. She has its number. Yes, the Republican-controlled and Republican-stacked Florida Supreme Court has already chosen not to enforce that state's ban on partisan

gerrymandering against Florida's gerrymander. You know, different kind of gerrymander, favoring rather than Democratic favoring. So clearly that's the principled basis on which to distinguish Virginia from Florida. I'll just say I've had Florida's number since 1983. Indeed. The year you were born. The year I was, yeah. Correct. All right. The Virginia's Supreme Court decision leaves the Democratic Party with basically no options to try and counteract the ongoing Republican gerrymandering that has occurred in the wake of Calais, certainly not in time to impact the upcoming 26 midterms, although there is more that they might do to impact the 2028 elections and thereafter. Republicans seem to be targeting around two to four congressional seats in Alabama and

Louisiana and perhaps additional seats in Mississippi and South Carolina as well, which is all to say that this entire landscape seems entirely anti-democratic and extremely, extremely effed up. And let's just put blame where blame is due. This kind of anti-democratic asymmetry is only possible because of the United States Supreme Court. So let's go to the Calais catastrophe, the ongoing impact of Louisiana versus Kelly. Let's get started. Right. So last episode, we floated the idea of a recurring segment about Louisiana versus Calais and its fallout just to keep kind of everyone up to speed on how moment

awful this decision was and is. Calais took out what remained of the Voting Rights Act, allowing white Republicans to gerrymander and lock themselves into power by locking out of power, voters of color, and voters of different parties. Last week, the court decided that its decision in Calais was so awesome, more on how awesome it is in a moment, but so awesome that the decision had to go into effect immediately, can't wait. Typically, after the court issues and opinion, And by its rules, it usually waits 32 days to issue what is called the judgment or the mandate. And what exactly is the judgment or the mandate? You can think about it as the court making its decision official, like for real, for real.

So something that has the force of law and that lower courts have to abide by. So certifying the judgment returns the case to the lower federal court and issues a directive to the parties to take action in the case. So here, the court had already released its opinion saying that, Louisiana need not and could not create a second black opportunity district as a way of complying with the Voting Rights Act. But issuing the judgment in the case effectively tells Louisiana you would be in violation of this if you had a second black opportunity district. So do something to change that. Releasing the judgment in Calais is a way of accelerating Louisiana's already hurried efforts to draw new districts that erase political opportunities for black voters. It effectively eliminates the lower court injunctions that had required them to do so. And that's exactly what the court did. Rather than wait the usual 32 days to certify the judgment and issue directives to lower federal courts and to the parties, the court certified the judgment in Calais in a matter of days. So less than one week after the case was decided. But why? Why so speedy, fellas? What's going on here? Is there like, I don't know, an election looming or something? Could it be that in some places, including Louisiana, there is an election that is already underway. So if you really want to,

want to stick it to black voters, you better get to step in to immediately ensure that the election is conducted under a set of maps where black voters are basically locked out of political opportunity. Could that be what it is? No, I'm sure it's neutral principles. Passive virtues. Exactly. But Justice Jackson was not going to let this go as she shouldn't and we shouldn't and you all shouldn't. So she dissented from the court releasing or certifying the judgment and noted that the court has granted an application to issue a judgment over a losing party's objection twice in the last 25 years, and that doing so here gives the appearance of partiality. As she writes, quote, the court's decision to buck our usual practice is tantamount to an approval of Louisiana's rush to pause the ongoing election in order to pass a new map. The court unshackles itself from both constraints today and dives into the fray.

And just like that, those principles give way to power, end quote. So Sam Alito, the whining little bitch from New Jersey, could not hand. someone accurately describing what he had done, saying the truth out loud is as ever the meanest thing you can possibly do to Sam Alito. And here's what Justice Alito had to say in response to this stinging rebuke from Justice Jackson. First of all, he called it baseless and insulting. And I imagine Justice Jackson sat at her deaths and thought, yes, exactly. That's what I was trying to do. I'm glad you picked up on it. But here's what he really had to say. quote, the dissent would require that the 26 congressional elections in Louisiana be held under a map that has been held to be unconstitutional. This is me staring in Allen v. Milligan, where the Supreme Court allowed the 2022 midterm elections, the elections where Democrats lost the House, to be conducted under a map that the court would later invalidate.

I will also note that requiring states to hold elections under maps that courts had found unconstitutional. is exactly what the Supreme Court required when it stayed lower court decisions out of Wisconsin during COVID and also out of Texas way back in the olden days of Czechs notes December 2025. In those cases, lower courts found that the state's election rules were likely unconstitutional. And in each case, the Supreme Court said the court's decision had come too close to the election to do anything about the possible illegality. But I guess now we're going to fix all of that. We're going to get on it.

And we're going to move quickly, nimbly, agilely to make these elections happen under really good maps. So just to cap it all off, Alito also tone police, Justice Jackson, closing out his statement by saying, quote, the dissents rhetoric lacks restraint. His statement was joined by justices Thomas and Gorsuch. So in addition to the developments in Louisiana, other states are also hop to trot on erasing black electoral power, the Tennessee legislature. as expected and as encouraged by Marsha Blackburn and Sam Alito adopted a map that breaks up the only minority opportunity district in that state by breaking up the city of Memphis into multiple districts. And Memphis, as friend of the show, Ari Berman, has pointed out in the past week, has been a single legislative district since 1923. So for over a century, the city of Memphis has

been a single legislative district, as makes perfect sense, this new map erases that. It also effectively prevents Memphis from sending the incomparable Justin Pearson to Congress, which I am quite sure was not an accident in the mind of these state legislators. Justin Pearson was one of the state legislators who was kicked out, one of the three state legislators who was kicked out of the Tennessee chamber in response to his protest over gun rights. So I guess he's too much of a Al-Rouser to go to Congress in any event. Also making moves is Alabama. Alabama has requested to lift the injunction from Merrill v. Milligan. Again, Merrill v. Milligan was the case in which the Supreme Court said that the Voting Rights Act required Alabama to create two minority

opportunity districts. Merrill v. Milligan is also known as Allen v. Milligan is also the case that's pretty much identical to Louisiana v. Kelly that the court decided in 20- No, totally different. John Roberts tells us that. As he tells us, because, yes, John Roberts was for Merrill v. Milligan, and he's against it in Louisiana v. Kelly. But they're effectively the same cases. It's just that it happens that Merrill v. Milligan had to be decided in 2023, a year

after Dobbs and 10 years after Shelby County. And that seemed just maybe a little too on the nose, even for this court. In any event, in Merrill v. Milligan, Alabama tried to create only a single minority Opportunity District, and now its request to lift that injunction is kind of awkward, given that in Calais, Justice Alito said that the Milligan case was totally different, right? Again, these guys just keep telling on themselves. It's not totally different. It's the same thing.

This is awkward as hell, super anti-democratic and super anti-Black voter. Yeah, we're fascism maxing now. And if you're wondering, could anyone have guessed that Alabama would be phoned? at the mouth to erase minority opportunity districts. We give you this exchange from the oral argument in Merrill v. Milligan between Justice Kagan and the Solicitor General of Alabama. General, some of your arguments, I think not all of them, but some of your arguments, would strongly indicate that Alabama could enact a plan with no majority minority districts. Do you think Alabama could do that?

Under the current guidelines, I don't think we would be able to because core retention is more than the What do you mean under the current guidelines? I'm interested in whether you think, as a matter of federal law, as a matter of the Voting Rights Act, you are prohibited from enacting a plan that has zero majority-minority districts. I think it would depend on sort of the guidelines that are being proposed there and the motivation. So you think that there are circumstances. I mean, this is important to me because some of your arguments sweep extremely widely, maybe most of them, that there are circumstances in which a population that is 27 percent of the state's population

could essentially be foreclosed from electing a candidate of their choice. Anywhere. Your Honor, there's always going to be that intensely local appraisal to see what was going on there. It all depends. You know, just it all depends. You will note that in that exchange, Alabama refused to rule out the possibility of drawing zero political opportunity districts in a state where one third of the population is black and more than one third of the state votes Democratic. Indeed, the Alabama governor posted a proposed map with zero opportunity districts. In addition to all of the boy law of Calais, the Guardian found there was even more boy math in the decision than we thought. So last episode, Kate noted that Alito had said, hey, there's no racial turnout gap in Louisiana anymore. Look at the numbers for these elections, which just so happened to be elections when Barack Obama was at the top of the ticket and Voting Rights Act preclearance was still in effect. Well, in addition to those boy maths, the Guardian found that Alito measured the turnout gap on the basis of what it called an unusual methodology, one that measured voter turnout with reference to the total population when the widely experienced.

approach is to consider voter turnout as a proportion of citizen voting age population or voter eligible population, which would exclude non-citizens and people who can't vote. Only time Sam Alito wants to count citizens. Because the problem is, had Alito used the acceptable or accepted method method, then black voter turnout wouldn't have exceeded white voter turnout in the 2016 presidential election, whereas it did under Alito's boy methodology. But under his methodology, wasn't he basically counting fetuses? Be honest. You know, why not? Why not? Anyway. Two other notes on Kelle, Democracy Docket reported that the lead plaintiff in Kelle, won Burt Kelle, was at the Stop the Steel rally at the U.S. Capitol

on January 6, 2021. Because that's where all the freedom fighters who want safe and fair elections were. In retrospect, wasn't that the least shocking revelation? Like, just totally. I mean, it's almost like all of this was an attempt. on the VRA, the Stop the Steel movement, all of this is a war on democracy. Who said that? I think we said it many, many moons ago anyway. But did they listen? I recall something similar.

So, other note about Calais, a friend of the pod, Sherilyn Eiffel made an appearance on the Daily Show where she spoke with John Stewart about the Supreme Court nuking the Voting Rights Act in Louisiana versus Calais. And during that conversation, John came up with a way of describing Sam Alito's take on racism and racial discrimination that needs to happen. Like, everyone needs to make this happen. So here it is. Is the idea now that to try and address that is in itself racist, that it's literally he who smelt it dealt it racism? Is that what we're dealing with? I hate that that's what it is, but that is what it is. Yes, it is the whoever smelt it dealt it theory of racism. I like it. Yes, it's great.

The fart theory of racism. Yes. Link it to Sam Alito forever. Yeah, the supremacist court. Brett Kavanaugh is like, what me? What's me? Right, exactly. Not me.

And I was like, I know how to play this game. He sure does. We can call these Alito districts now. Yeah, that's good. That's good. All right. So the same week that the court decided to make an exception to the usual rule, we were talking about earlier about when a judgment issues in a case where the exception just so happened

to facilitate Republican redistricting, racial minorities, and Democrats totally out of power. The Chief Justice gave a speech at a judicial conference where he said, quote, I think they view us as truly political actors, which I don't think is an accurate understanding of what we do. He also had this to say, quote, we're not simply part of the political process, and there's a reason for that. And I'm not sure people really graft that. So they view us as political actors, says the guy who repeatedly behaves like a political actor.

And not simply part of the political process, says the guy who's literally remaking the political process. Also, sir, have the courage to make these remarks on camera so that we can do a YouTube rapid reaction video to your remarks. We can still do it. I'm happy. I'm happy. Yeah. I'm happy to do it. Okay.

We should make like a little blow up face of. John Roberts that you can hold in front of yourself while you recite it to simulate it as best we can. I mean, I also have to say it takes real cheek to say something like this maybe two weeks after Jody Cantor and Adam Liptack put your ass on blast where you literally were being a political actor taking statements that weren't even in the court record because there was no record in the clean power plan, but you're watching Fox News and you're really pissed about. about what EPA administrators are saying. They will not play in your face, sir.

And so you then decide to depart- Nobody puts John Roberts in the corner. Nobody puts John Roberts. I'm the captain now. I'm the Chief Justice now. And then you literally depart from decades of precedent governing the shadow docket. And then you want to say that you're not a political actor

or you don't understand why the public thinks you're a political actor. Like, be so for real. John Roberts is not for real. No. Can I just come back to something we said earlier in the episode? We were quoting Justice Jackson's dissent from the mandate issuance order. Principles give way to power.

Like I just think that actually is as good a summation of like what we are seeing on display. And they don't like being called out on that. And this is the temper tantrum that we see when they are. The chief also had this to say, quote, One of the things we have to do with issue decisions that are unpopular. I don't know that I would call it unpopular to complete. eviscerate a statute that had broad bipartisan support and had been reauthorized multiple times by a democratically elected Congress.

Like, maybe our understanding of popular and the Vox populi are just completely different, but I would not call that just unpopular. Also, I'm sure it was so hard for you, John, to knowify the voting rights app. It's not like you haven't wanted to do that for like four decades. I mean, I was working on it for so long. when I was in the White House, but then I thought. I mean, I did try and do it when I was in the DOJ, but I mean, like, no one thought it would really happen.

So now I'm just kind of like, wow, look at me. The brave truth teller, John Roberts. Okay, so speaking of DOJ, where a young John Roberts cut his teeth, like learned the skills that we are now all living under, there is good news from the Department of Justice, which is that if you are looking for a job, the civil division of the DOJ, once one of the most prestigious places a young lawyer could work is apparently so desperate to hire people, it is now handing out signing bonuses of up to $25,000 to hire lawyers who can work out of non-D-C offices, including New York, San Francisco, Dallas, and Raleigh.

Make DOJ great again, I guess. It actually turns out that the federal government is offering all sorts of job perks these days, so let's open up the liquor cabinet and see what these guys have in store for us this episode. Okay, so more reporting from The Atlantic, which has reported since we last recorded that, quote, FBI director Cash Patel, and that's Cash with like a dollar sign instead of an S, has given out bottles of his personalized whiskey to FBI staff as well as civilians he encounters in his duties. The Atlantic describes the bottles as being engraved with the words, quote, Cash Patel, FBI director and a rendering of an FBI shield. Surrounding the shield is a band of text featuring Patel's director title and his favorite special. of his name, as I said, Cash with the dollar sign. An eagle holds the shield in its talons, along with the number nine, presumably a reference

to Patel's place in the history of FBI directors. Jay Edgar Hoover would be so impressed. It's Jay Edgar Boozer. I heard the guys on Podsave using that term. I don't know who coined it, but I really do. I'll credit them for it. But in any case. I mean, that might be the most significant thing that Cash Patel has ever done, like

make you look fondly on Jay Edgar Hoover. I'm Jack Hover. You know, his I don't have a drinking problem line of personal bourbon is answering questions raised by his I don't have a drinking problem line of personal bourbon. This report from the Atlantic came from the same reporter, Sarah Fitzpatrick, who reported the story about Cash Patel allegedly being hung over and inebriated while on the job. This is the same reporter that Cash Patel has sued. This time, according to Fitzpatrick's reporting, quote, the FBI did not dispute that Patel gives out bottles of whiskey inscribed with his name, but a spokesperson portrayed the gifts as routine within the FBI and the broader government.

Side note. Not unconstitutional to give gifts. I was going to say the government according to Harlan Crow. In my day. Cash is going to have to step this game up. Atypical. It's just personal bottles of bourbon. Like, where's your price?

private jets, sir. Anyway. He's a humble FBI director is all he got. Wait, finish reading this quote, though. He does treat the FBI jet as his personal jet. So there's that. Why not both? Well, okay, so back to the story. The story continues, quote,

when I reached a former longtime senior FBI official to ask whether he'd ever seen personally branded liquor bottles distributed by a previous FBI director, he burst out laughing. And that is the right reaction. because no one has ever given out. You don't think Jim Comey was doing this? Can you imagine? I mean, the whole episode is horrifying and also somewhat amusing.

Gone, gone. The dollar side. I'm just like, sir, what? I mean, it's so pathetic. It's given wag culture. No, it's giving loser-in-cell culture. Like, these guys trying to fulfill all of their dreams and their ideas. about what it means to be a man that they could never actually achieve outside of this grift.

It's just embarrassing. It's pathetic. So it's all those things. Embarrassing, pathetic, horrifying, kind of funny. But, I mean, really not at all funny is reporting from last week, also involving the reporter. We were just talking about Sarah Fitzpatrick at the Atlantic who has broken now these two stories about Patel. And she is being targeted by the FBI with a criminal leak probe, according to reporting from last. last week. So I guess, again, it's not surprising that that is the kind of misuse of power that

these guys are engaging in, targeting critics. It gets worse. It feels like a very alarming escalation. It gets worse. MS now has reporting from Carol Lennox and Ken Delanian saying that Cash Patel has ordered polygraphs of people close to him in the FBI to try and determine the leaker. And I'm just saying, John Roberts is right there. If you want to find a leaker, Go to John Roth. Oh, wait. Wrong guy. You go to the marshal and you have the marshal just ask people, are you the leaker?

Are you the leaker? There's a way to get them to notarize. No, but can't you get them to notarize a document saying right with their little stamp? And then you know for sure. Okay. So quick lightning around with a few more pieces of news. First, we have to talk briefly about the fact that the EEOC has filed a quote, like huge scare quotes, civil rights lawsuit.

against the New York Times on the theory that the Times discriminated against a white man by not giving him a promotion because that's who gets to file civil rights lawsuits and Donald Trump's America. Melissa, you had a great threat about this lawsuit. Do you want to repurpose any of it on the pod? I'm just going to say straight up. One, there's also reporting from New York Magazine and the cut, I think, that may actually identify who this person is. So if you want to know, I guess go there. I will say, I don't think the point of this lawsuit is to prevail in court, as I note in the thread, there has been no legal determination that efforts to remedy rampant under representation in certain employment sectors is impermissible, whether under the Constitution

or under statutes. So that's not what the EEOC is after here. I think what is really happening is that this is an effort to cow newsrooms into basically thinking twice when they might hire a woman or a person of color and to cement the underrepresentation of those groups that has long persisted in newspapers and other legacy media for generations. And to the extent this shapes coverage of certain issues and shapes the way people understand the issues and how it relates to a democracy. I think all of that is the point. Indeed.

This is this administration's MO, like intimidation, deterrence. basically stopping people from doing things that they can do, like basically making them obey in advance. One thing they couldn't do is keep E. Jean Carroll from spending Donald Trump's money. So the DOJ has now stepped in into the appeal of E. Jean Carroll and the verdict against Donald Trump. And they basically said the president wants a freeze of the payments being made to her. So we will see where that goes. But I'm pretty sure E. Jean Carroll was just going to tear it up with that. that money. I wonder if he just doesn't have it. They've also asked for the federal government to

basically stand in for Donald Trump rather than having the litigation against him. We have talked about this before in our paper forthcoming in Northwestern about personal litigation that takes on a very public import and persona and profile. And this is the kind of like most literal expression of that, seeking to have the government step in in this lawsuit to say Trump was somehow acting in his official capacity, at least in terms of some of the remarks he made. And he made. And he's, against about Eging Carroll that were what led to the 80 plus million dollar verdict that she obtained against him. We will see how that effort to substitute fares. Another decision, the Court of International Trade ruled on Thursday, last Thursday, that the president's new theory about

tariffs is also wrongheaded and fucked up. The president apparently does not have the authority to impose tariffs under Section 122 of the Trade Act of 1974. That's the latest statute that he's in vogue to underwrite these tariffs. Those tariffs that he imposed in the wake of the court's tariff decisions impose 10% tariffs on various imports. Notably, the Court of International Trades ruling not only invalidated those tariffs under Section 122, they also ordered the administration to refund the money collected, something that the Supreme Court's decision did not do. Yeah. And a district court ruled for the American Historical Association. And other groups that had challenged the grant terminations by the national endowment for the humanities.

This was the case that generated the Doge Bro depositions. It's a remarkable opinion that details just the stunning carelessness and hubris of Doge. And that's about it. Utterly predictable, I would say. Utterly predictable. Utterly predictable. And that is the news. But stay tuned now for our conversation with Nancy Northup and then for our favorite things. Struck Strutiny is brought to you by Smart Credit. Here's something most people aren't told about their credit score. It's not just whether you pay your credit cards. It's when you pay your credit cards.

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companies left in Trump's America. If you join, you also get ad-free episodes of all your favorite pods, ad-free episodes of Pod Save America, love it or leave it, offline, Pod Save the World. You also get bonus content like our new extra episode of Pod Save America called Pod Save America Only Friends, Dan Pfeiffer's Polarcoaster. You also get access to all of our excellent substack newsletters like Pod Save America Open tabs and tons more great content. So stop what you're doing right now and go ahead and subscribe at cricket.com slash friends. Check it out. And now to help us break down what the fuck is going on with Miffa Pryston is Nancy Northup. Nancy is the president and CEO of the Center for Reproductive Rights, the organization

that represented the clinics and Dobbs v. Jackson Women's Health Organization. The decision which our listeners, of course, will know is what overruled Roe versus Wade. The Center for Reproductive rights also represents the many women in several different states who are seeking decisions clarifying the scope of medical exemptions under state abortion bans, including cases in Texas and Tennessee. Welcome to the show, Nancy. We are so appreciative of you taking the time. Thank you. It's good to be here. Let's just sort of get right to it. Why are anti-abortion forces targeting Mififififistone the way they are right now? And why is that such a big deal? Well, they're targeting Mitha pristone because abortion pills have been a lifeline

in post-row America. Currently in the United States, two-thirds of people getting abortions are doing so via abortion pills. And specifically, since the FDA has allowed telehealth to be used, that you can have a visit on your computer with your provider and then receive the pills by mail or pick them up in a local pharmacy, now one in four people are having their abortions that way. So it's a big deal. They don't like the fact that people want to get abortion care, and they are getting abortion care in a way that is safe and effective, according to the U.S. Food and Drug Administration. And can you talk a little more, Nancy, just sort of before we go deeper? So you talked about just how common and kind of widespread this particular use of Mephypristone is. And you said safe and effective at the end.

Can you just talk a little bit more about kind of what we know about the safety and efficacy of abortion pills, which include Mepaphystone? Certainly. I mean, going back over 25 years, the FDA approved medication abortion, a regime that involves two different pills, Mifopristone and Misaprostol, as safe and effective for being on the U.S. market. It had been approved years before in France, but the U.S. finally caught up 25 plus years ago. And so it's been on the market. There were initially restrictions that the FDA approved.

put on it unnecessary restrictions from a health perspective, but there were restrictions put on it for years. And one of those restrictions was that you had to go in person, but the FDA first during COVID and then afterwards approved it also by telehealth. But there have been hundreds of studies that have shown it to be safe and effective. There have been millions of women in the United States and even more millions around the world who have ended their pregnancies safely and effectively with this two drug regime. So Nancy, our listeners will remember that in the FDA versus Alliance for Hippocratic Medicine, which the Supreme Court dealt with a few terms ago, there was another attack on Mifra Pristone. That challenge was initially filed in

Amarillo, Texas in the courtroom of one Matthew Casmeric. He's a judge, but he's also America's leading scientist on this issue. That is a joke as well. In that lower court ruling, Judge Casmeric purported to revoke the FDA's approval of Miphyprostone. And then the Fifth Circuit rescinded some of the FDA's guidance for how Miphaepristone can be used, including guidance about what point in a pregnancy that Miphaestone can be prescribed and whether Mifapristone could be prescribed via telehealth. The Supreme Court unanimously reversed that decision, saying that the plaintiffs in the case, this was a group of anti-abortion doctors, and dentists didn't have standing because they hadn't established that the availability of

Mifrapristone or the FDA's guidance on Mifraprisone had harmed them or was likely to harm them going forward. And that was because their theory of the case depended on a set of absolutely implausible events that were incredibly attenuated. But as we've noted before on this podcast, by reversing the decision on standing, the Supreme Court didn't address whether the Fifth Circuit was correct that the FDA was wrong to allow Mifapristone to be prescribed via telemedicine. So now the Fifth Circuit has picked up the mantle in this new case that's been filed by a different plaintiff here, Louisiana. But Louisiana's theory of standing seems pretty attenuated too. So can you explain how the jurisdictional questions

in this case are different from the case that the court threw out in 2024? Well, they're not. Louisiana doesn't have standing. I mean, they try to. Analytical reasoning, very hard in the Fifth Circuit, it turns out. They try to establish it in two different ways. The first is super, you know, attenuated, the claim that because they say two women who had complications from allegedly having an abortion with medication abortion appeared in hospital emergency rooms and were treated at some expense to the state. I think $92,000 was their claim. She tells you a little bit about how expensive health care is. But that is a very attenuated claim. We don't know where they got medication abortion. We don't have any idea whether they got medication abortion through telehealth and why that even matters. And so that's very attenuated. Then Louisiana comes in and says, you know what, actually, here's the real rub. We can't effectively enforce our criminal ban on abortion because people are accessing medication abortion through telehealth and receiving pills through the mail. You know, the fact that Louisiana can't enforce its criminal statute is not a reason for standing to stop the entire nation from getting abortion pills safely and effectively.

I mean, I was a prosecutor in the U.S. Attorney's Office in the Southern District of New York. I couldn't go to court and say, you know, I'm having problems, you know, enforcing this law and bringing this criminal prosecution. So I'd like you to knock down a few things in other states and make that a little bit easier for me. So, you know, it's an absurd position that they've taken and a very dangerous one. I mean, we have a lot of states in this country

that support access to reproductive health care, access to abortion care. Their voters have, you know, put it on the ballot and said, hell yes, this is what we want. And in states where people would be surprised, like, you know, Missouri and Arizona. and Arizona and, you know, Michigan and Montana. And the voters in those states should not have their desires

to have their state constitutional right to abortion overridden by Louisiana's problem with enforcing its abortion crime. I was also under the impression that federal law, not state law, was supreme, such that if federal law was making it more difficult to enforce state law, not exactly a constitutional injury, even though the reverse might be true. But again, just a humble constitutional law professor here. So what Nancy did the Fifth Circuit do in this Louisiana case

and what effect would their ruling have if it's allowed to go into effect? What effect did it have when it was in effect for that weekend? Yeah. So the Fifth Circuit issued. The district court said, no, we're not going to block the telehealth provision. that the FDA has approved. And the Fifth Circuit, you know, made this ruling that not only said, we disagree with the way the district court judged who would be harmed if an injunction was put in place.

And we think that Louisiana should prevail here. We're putting in an injunction. We're doing it right now immediately and came out five o'clock on Friday night. And that meant, you know, across, we represent, you know, clients across the nation, those that telehealth had to scramble and figure out what they were going to do. They had to have, you know, patients come in if they were scheduled for that weekend. And you can't. If you live hundreds of miles from the clinic, you can't just come in the next day. You might have to work. You have childcare. You may not be able to afford that trip. So it created absolute chaos and upending.

And not just, I want to point out, and I was talking to a friend of mine in California, over the weekend. And she said, well, this doesn't apply like in California. I'm like, this applies in California. Okay? You cannot get a telehealth visit for medication abortion and pick it up at the pharmacy or have it mailed to you in California.

Did not understand that was the consequence of it. So if this is not a wake-up call to people across the nation, that it does not matter if your state protects abortion rights in your constitution, if your legislature protects it, If you have a shield law in your state that protects your doctors, doesn't matter if this kind of, you know, ill-founded ruling is allowed to go forward. Yeah. So I guess just want to specifically follow up on this because although the ruling was unsubstantiated, had no basis in law or fact, and, you know, is hugely consequential, Mithepristone is still going to be accessible, you know, with this ruling if it's allowed to be. go into effect, as is medication abortion, even by telemedicine, even if it's not the currently approved protocol. So could you just talk a little bit about how this would affect the accessibility

and availability of Mifraprisone and medication abortion? Well, I mean, to begin with, as I've been saying, it requires that you have to go to your provider in person to get the medication. And as we know, abortion clinics have closed in recent years. I think about a state like Maine, again, protects the right to abortion, but Maine family planning, which used to have 18 clinics throughout the state providing abortion claim. They had to close some of their clinics because of the defund plan parenthood provision that Congress passed. So if you have to drive a long distance and take time off of work and be able to get into that scheduled, you know, appointment, it's going to make it harder to get care. So that's why it's a big deal. That's why it's important. And again, it's nationwide.

Nationwide. So Nancy, I know that you know that our friend of the pod, Samuel Alito, really issued a win for abortion rights last week when he issued an administrative stay that provided a week for briefing and whatnot and for the court to get its ducts in a row about this, but it also allowed Niphaepristone to be distributed via telehealth for this period of one week while the court decided what it's going to do going forward. This means he's pro-choice, right? Well, professor, I know you know that. So many people have asked me, like, what should we make of this? Sam Alito doing this. He must know how wrong this is. Can you help us work through this? Help us. teach the kids? Yeah, it's an administrative stay. It's just a procedural move to say,

you know what, we will let parties file their briefs. We will, at a very short schedule, but we will let the parties file the briefs. We will read and think about the briefs. And, you know, Monday night at 5 p.m., the stay will be in effect. It's just a procedural move. It's what one would expect a court. to do when considering something as upending, as a nationwide invalidation of an agency determination about a drugs, health, and safety? And as our friend of the pot, a real friend of the pod this time, Steve Volatic has reminded us, Justice Alito has asked the circuit justice for the Fifth Circuit issued administrative stays before when emergency petitions have come before him.

in many of those cases, in circumstances where I think he's inclined to agree with the litigants requesting this day, he often doesn't put a deadline on this day. But this particular ruling came with a quite short leash, which we should also remember. So don't worry, guys. No pussy hat for Sam just yet is what I'm doing. That's, yes, yes. But that makes me sort of want to get ahead of maybe another round of commentary along the lines that you were just kind of alluding to, Melissa. So this stay will expire. We're going to get a decision.

So this is, again, an administrative stay. We're likely to get a decision on an actual stay, you know, within a day or two after this episode airs on Monday morning. So it's entirely possible that the court will order a longer-term stay of the Fifth Circuit ruling. Nancy, what should we make of the court doing that? Should if we are not celebrating Sam yet, should we be celebrating him if that comes to pass on Monday or Tuesday? No, we should understand that there is a further procedural completely proper and should be expected. I mean, injunctions against federal agency decisions should not be quickly granted. And so it just means there's going to be more time for the court to consider it.

Or, you know, hopefully that this will go back and go through a normal decision process and the court will consider it on the merits. But, yeah, no one should read anything and go back to their business as usual. They should read all of this as deeply troubling. So listen to that, legacy media. Do not give Sam Alito credit for doing the absolute lease. This is literally his job. No cookie for Sam.

No cookies for Sam. Yeah. Okay, so Nancy, another question. So can you maybe talk in general terms about what, you know, so we don't know exactly if another stay will hopefully be granted if this case gets argued in the fall when the court is sitting again and, you know, the drug remains available over the course of the summer on the existing FDA approved terms. But of course, there's a lot of uncertainty both in terms of what the courts will do, but also the FDA itself says it is undertaking this internal review of Miffipristone. So I think there's just like a lot that we don't know sort of about what the next few months will hold. So can you talk a little bit about how people can and should support abortion acts. during this like deeply uncertain time. And maybe I don't think we've really explicitly talked about this. So can you also talk a little bit about if Miphystone again becomes unavailable, at least in terms of telehealth, how people might be able to get a different protocol for medication abortion,

because medication abortion is of course possible without using Mepapristone. So could you talk a little bit about all of that? Yes. And I'm actually going to go in reverse order to say that no matter what happens, if you are a person who is seeking abortion care, call a trusted provider. Don't assume because you heard a podcast and you thought you understood that you just can't even get it or there's no way to get it via telemedicine. Call a trusted provider, find out what the situation is before making any assumptions. So that's number one. In terms of help, well, I will start with that. Support your providers. They're very important. They're on the front lines of providing care under incredible stress. Support local abortions.

You know, in this post, they've always been important because so many states don't cover abortion care under their Medicaid programs or people are otherwise low income. There are abortion funds that help people get the care they need, help them travel in this post row America if they need to get that care. And there are usually ones in locales in every place in the country or there's the national network of abortion funds. Talk about the issue. People are so misinformed. You're getting people calling you saying, what's happening to, you know, Justice Alito seems like he's being great on abortion. You know, I'm talking to people who are pretty knowledgeable, but still say, wait, what do you mean it's going to be banned here in California, too? Talk about it. Don't let it, you know, it's been very hard to push through in this media environment around this crisis that we still have. We live in a country in which in some states, people are free to control their reproductive lives. And in other places, they are not free to do so. So we've got to remind people of that every single day. We have the free and the unfree. And this case, Louisiana versus FDA, is the unfree trying to come after the rest of the state. So talk about it, get educated about it. And you do need to, you know, pick up that phone or send that,

you know, a text or send that email to your office holders whether they support abortion rights or not. If they don't, they need to know there's people out there who do support it. And if they do, they always say to us, we don't hear enough. We don't hear enough. They got to, you know, you got to buck them up. You got to let them know we're out there and we want them to keep on going. So all those things are important. But talk, talk, talk, talk, talk about it because you know it's going to happen over the next months. We're going to hear a lot in the media about, you know, no one cares about abortion rights anymore. We hear it every single cycle. Well, on that note, listeners make sure to make caring about abortion a thing in the upcoming election cycle and

thereafter. Thank you so much, Nancy, for taking time out of your schedule to educate our listeners and explain what's going on and what we should do about it. Great. Thank you for having me. Thank you for covering it. Okay. So some favorite things. Two new great albums released in the last week, Casey Musgraves, middle of nowhere, and Munah's Dancing on the Wall. Also two New York Times pieces, also related to Voting Rights Act and what the Supreme Court did to it. Nico Bowie and Daphne Rannons, who will stand up to Supreme Court justices and Jamel Bowies, John Roberts, believes in an America that does not exist. Okay, I will go next.

Melissa, you recommended yesteryear, I think last week, and I read it and I devoured it. I felt differently at different places about it. It's actually not what I thought. It's not quite about what I thought it was, but or isn't quite what I thought it was. Which you think it was? Well, it's just much darker. I mean, it's not. Anyway, it's more than the premise is very straightforward.

Tradwife gets like, you know, like time traveled back in time and like it's shitty back there. It's just much more complicated than that surface description suggests, but it's, I really enjoyed it. Okay, couple other things. New York City, mayors are on Mamdani doing the five borough bike ride and all the video that emerged from him doing that. And then also skipping the Met Gala to hang out with fashion industry workers. I loved both of those. friend of the pod, Rody, occasional erstwhile Rody of the pod,

Chris Hayes had a wonderful conversation on his podcast with Molly Crabapple about her book Here Where We Live is Our Country. I really recommend that. And another podcast to recommend The Daily did an episode filled with kids' questions for the Artemis II crew,

and the four of them are like the most amazing, charming, like spiritually elevated people. Like, they are so impressive. And I love the questions and I love the conversation. So really recommend that. And then tonight I'm going.

So I think it'll be one of my favorite things, but I haven't done it yet. To the WNBA team in New York, the Liberty's home opener. And I'm taking three 12-year-old boys who are enormous Liberty fans. And I just like more fans of all stripes for the WNBA is like a thing I'm super excited about. I'm super excited at the players having a much better deal this season. We've talked a little bit about the bargaining around that. So psyched for the opener. And I will pass the mic to you, Melissa.

Okay. Mine are going to be super shallow. So I did not attend the Met Gala, didn't get my invitation, just waiting, but I did watch and I did have thoughts on some of the fashion. The theme this year was basically fashion as art. And I don't know if I loved it or I love to hate it, probably the latter. But Lauren Sanchez Bezos, deciding to dress up as the John Singer-Sargent painting, Madam X, for which she, spent a shit ton of money on a scaporelli dress that honestly made her look like she was going to the 11th grade prom. Like, it was just basic. I mean, I don't even know what else. I also enjoyed the video of her and her friends watching Joshua Henry sing on the steps of the Met and nobody could clap on the beat.

I am going to relate this directly to the decimation of the Voting Rights Act. I will also say I was very impressed and I loved, loved, loved the artist Amy Sherald. She was the one who did Michelle Obama's official portrait. She wore a custom look by Tom Brown that was inspired by her painting, Miss Everything, Unsuppressed Deliverance, and it was everything. I love the whole idea. I just love the whole fashionist art of people referencing these works of art. I wish some of them weren't so basic, but Amy Sherald's was absolutely a plus.

I will also plus one to Jamel Bowie's John Roberts believes in an America that does not exist in the New York Times, in part because he exhorts the American public to reclaim the Constitution as their own and to start making the same kinds of constitutional claims that the Supreme Court seems to do without any reference to the document itself. But you can reference the document because I wrote this book. So I like that Jamel Bowie and I are on the same page. Works for me. All right. Okay. So some housekeeping. Why does it seem like the Supreme Court always saves its worst decisions for June? Maybe the first gentle breezes of summer fill them with inexplicable rage. We cannot say for sure. Some of the rulings that may transpire include mail and ballots, deportation protections, rules governing whether transgender athletes get to participate in sports, birthright citizenship, and more. So this June, the three of us at strict scrutiny, are headed to New York City to break. down all of the cases in question and whatever horrors, the Roberts Court has in store for us with judicial expertise and petty jokes at Sam Alito's expense in equal measure. Catch strict scrutiny live at the historic Grammarcy Theater on June 20th as part of the Bad Decisions Tour. Tickets are on sale now. You can grab them at crooked.com slash events. And in the latest episode of Runaway Country, I got to join my friend Alex Wagner to discuss a lot the outrageous selective indictment of Jim Comey, not for his off-brand whiskey production, but for

moonshining Jim Comey. Some art made with seashells on a beach. Maybe not by him. Probably not. It seems ostensibly not by him. No matter, right. He is being charged for it anyway. We talked about Trump's insane $10 billion lawsuit against the IRS and kind of generally

why it matters when the Department of Justice. is weaponized against the perceived political enemies and deployed to help the friends of those already in power. Yeah, I mean, like this week, Fed's raided the office of the black woman who led the Virginia redistricting effort. We didn't even get a chance to cover that. Like, there is just so much. So tune in to Runaway Country, wherever get your podcast.

You can hear me this week and you can hear Alex's great other guests other weeks. And you can also watch us anytime on YouTube. Struck Stutney 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 Raoul, 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 and on YouTube at Strict Scrutiny Podcast so you never miss an episode. And if you really want to help other people find the show, please rate and review us. It really helps.

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You also get access to all of our excellent substack newsletters like Pod Save America, open tabs, and tons more great content. So stop what you're doing right now and go ahead and subscribe at Cricket.com slash. friends check it out