Strict Scrutiny - The DOJ is a Corrupt Clown Show

Episode Date: October 26, 2026

Leah and Melissa break down the administration’s latest lawsuits, from the DOJ’s fight over Alaska’s Senate candidacy, to its efforts to force California to turn over voter information, to Trump’s golf course fiasco. They also recap the latest developments at the Supreme Court, including a lower court ruling on New Hampshire’s election guidance for student IDs and the Court’s decision not to hear a significant copyright dispute out of the Fifth Circuit. Plus, they unpack the administration’s seemingly endless legal corruption, from Alina Habba to Vivek Ramaswamy’s disgusting Ohio campaign ads targeting his opponent, Amy Acton. Then, Kate talks with Rachel Shelden about her new book, The Political Supreme Court: A Forgotten History.Favorite Things: Leah: Attachments by Rainbow Rowell | Queen of Lombard Street by Lisa Kleypas | Talarico x The Chicks | You Can See Everything | Pablo Torre on Vivek | Lily Allen celebrating the one-year anniversary of West End Girl with a sex toy launch Melissa: Happy Anniversary Mr. Melissa Murry! | The Diplomat Take the Strict Scrutiny survey.New Strict merch available here.You can now listen to Strict Scrutiny for CLE credits in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon! More info at crooked.com/strict_cleGet tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.comBuy Melissa’s book, The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern ReaderBuy Leah’s book, Lawless, now out in paperbackFollow us on Instagram, Threads, and BlueskyFor a transcript of an episode of Strict Scrutiny please email [e-mail]

Strict Streetney is brought to you by Americans United for Separation of Church and State. It's back to school season, and this year, five million children across Texas are going to be greeted by the Ten Commandments in their classrooms. Texas politicians passed a law requiring the Ten Commandments to be displayed in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas, supported by Americans United for Separation of Church and State, are taking the fight to the Supreme Court. and we need you to amplify their voices before the Supreme Court gets its hands on this case. They're going to go up, but we're going to fight to get them taken down. That's Texas public school parent Ted Lowe. Ted and Rebecca Lowe are an interfaith couple. Ted is Jewish and Rebecca is Christian, and their kids are in Texas public schools.

The story they tell in this video is moving, and we hope everyone hears and shares it. There's a human cost of Christian nationalist policies like these Ten Commandment laws, and the decisions that the Supreme Court hands down. You can visit A.U.org forward slash 10C to learn more about this case and how you can help join the fight to protect church-state separation. Mr. Chief Justice, may it please support. It's an old joke. When I argue, man argues against two beautiful ladies like this,

they're going to have the last word. She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our legs. Hi, everyone, it's Leah here. So in this episode, you will hear Melissa and I talk about a lawsuit that the Department of Justice filed against a state of California that is trying to force a state not to count certain ballots, which DOJ alleges were cast by non-citizens. As we say in the episode, this lawsuit is ridiculous. But after we sat down to record, the Ninth Circuit Court of Appeals, that's supposedly very liberal court, scheduled a late Sunday afternoon, seeming emergency, Zoom hearing on it.

This is to put it mildly, more than a little terrifying. For one thing, the court shouldn't even be entertaining DOJ's claims to be in the Ninth Circuit, which is a court of appeals, that hears, you know, appeals. There's nothing to appeal at this point. The trial court hasn't ruled. But the Ninth Circuit is indulging. DOJ's attempt to circumvent the normal litigation process by scheduling this argument. so that by itself alarming. More importantly is that DOJ is making an argument that resembles an argument the Trump campaign attempted to press in 2020. Back then, the campaign insisted there were

irregularities and votes that required thousands of votes to be thrown out, even the votes that were lawfully cast under these state rules. No court bought those arguments. These were also the arguments that Trump unsuccessfully attempted to press his DOJ to make again back in 2020. But back then DOJ largely didn't bite. Things are very different now. Now the Trump DOJ is advancing a version of the claim the Trump campaign did, in which is urging courts to throw out ballots, it alleges were unlawfully cast, even though it has yet to produce any real evidence to that effect. And now a court seems to be taking these arguments at least somewhat seriously. The panel of judges in this case is two Trump appointed judges. This seems like a sign about the real dangers that we attempted to talk about with respect to the Trump takeover of the federal courts. That may be coming home to roost now as Trump appointed judges and the Trump DOJ potentially cross this rubicon of throwing out votes as an election is already underway. Safe to say, we're monitoring this case. And in the event, there is a ruling that allows the Trump DOJ to do any of what is asking. We will share real-time rapid reactions. We're hoping that won't be

necessary because of the many reasons this lawsuit should fail. Federal law that makes it a misdemeanor for non-citizens to vote doesn't give DOJ the authority to tell states what ballots it counts, a separate federal law, bans voter purges in the 90 days before an election. DOJ hasn't explained why it waited to force this issue until the election is underway. There's nothing to appeal. I could go on. So keep this in mind as you are listening to Melissa and I talk about this ridiculous lawsuit and we will be monitoring it in the days ahead. Welcome back to Strict scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. Where are your hosts for the first part of today's episode. I'm Melissa Murray.

I'm Leah Littman. And one downside of this being only a weekly podcast is that we have nowhere near enough time to cover all of the ongoing legal matters involving this administration. But a between-sitting episode, which airs after a week in which the court does not hear oral arguments, gives us more time to do so. So lucky us. Today, we're going to spend our time on some recurring nightmares, election fuckery, FUs to the rule of law, and grifting. Or just another week in the second Trump administration. Okay. And after we chat about all of those legal goings on, we are going to bring you a great conversation that Kate had with author Rachel Sheldon about her new book, The Political Supreme Court. And as always, we'll end with our favorite things. Here's a spoiler. None of them are election fuckery, grievance, or grifting. And that means we have to start there. So first up, election fuckery. People have rightfully been concerned about what this administration might try. by way of election interference. And in the last week and change, some of their plans seem to have been revealed with a focus on the West Coast. So as we sat down to record, the Trump administration decided to have a go at Alaska. They have sued Alaska over Dan J. Sullivan's Senate candidacy, arguing voter confusion could affect the race between Senator Dan S. Sullivan and Democrat Mary Peltola. As they say in the biz, this lawsuit is horseshit. First, nothing in the Constitution. makes it illegal for people with the same name to appear on the ballot. I would know because I can read.

Also, the executive branch doesn't have authority to regulate or override states' election decisions about whether a candidate is qualified. The Alaska Supreme Court already held that all the candidates were qualified and would appear on the ballot. But federalism. Seriously, this lawsuit is so embarrassing. It's the sort of thing that if an IFP inform a popperous pro se litigant filed, they would get a strike for because it's so baseless. Like, it would go toward a court having to pre-approve any subsequent litigation they could file. And now these suits are being filed by DOJ, the new vexatious litigant. Well, can I just throw something out there? Yeah.

You know how we could avoid all of this, Alaska? Stop nominating Dan's. Start nominating a Danielle. Nope. New DEI, right? Dan's ex-husbands and imbeals, Melissa. I mean, I'm saying. I'm saying, these cases happen a lot.

I was actually talking with Michael Waldman of the Brennan Center about this litigation. And he's telling me, like, this is a pretty standard playbook that, you know, sometimes parties will run someone with the same name to do this. And he talked about, yes, it's not illegal to do it. But again, most of the time it's been happening, usually because there are guys with the same names. And it's very easy to put them out there as candidates. But wait for it. If you tried a little gender diversity, this might be a little harder. It might be. DoJ's choice to file this baseless suit just days before an election seems to confirm what we have long known and been saying. This DOJ is a corrupt clown show. The suit seems designed to feed narratives to undermine election results if and when they are unfavorable to Republicans or to try and bolster subsequent efforts by the DOJ to intervene and interfere if the election.

election results are close. Seems like a plan. In other news from the West Coast, Best Coast, California became the latest target of a DOJ lawsuit that seeks to force the state to turn over its voting roles to the federal government and then make them rely on the Trump administration's unreliable voter information. In this case, the administration alleges that there are non-citizens who are supposedly voting in droves.

DOJ, we should note, is currently 26 and O in lawsuits that it is tried to file to force the states to turn over voter information so that DOJ can find the evidence that it knows exists without actually possessing any of the evidence, it is sure exists that non-citizens are voting. So lots of evidence saying that this is not a real problem. DOJ continues its quest to find it and like Inspector Gadget hasn't really succeeded. but keep hope alive folks with another lawsuit. So maybe the 27th time will be a charm. So DOJ is suing California, and it alleges that DOJ has uncovered a few thousand ineligible voters who are registered to vote and wait for it. DOJ has all of this information about these registered non-citizens on a very secure thumb drive. That's right. because this is the new election security for this administration. Information security, all at your fingertips. Literally, you're just your thumbs. Never mind. That was, I guess,

Trump 1.0. Maybe back again. Yeah, that's the information security administration. That was the information. We've moved on. Right. Correct. Correct. But there are any number of reasons to think this is all bunk. DOJ now says there are 20,000 some non-citizens who are registered. But last summer, right, as in a few months ago, it was saying the number was almost 200,000. That's a pretty big delta. Yeah, like an order of magnitude. It's almost like they can't read or do math. Open the schools. Open the schools. Open the schools. You know, when another state, Nevada investigated DOJ's allegations about non-citizens who were supposedly registered to vote, Nevada found precisely zero non-citizens who were actually

registered to vote. DOJ is also subject to a court order in the District of Columbia that bars it from carrying out what is known as its list maintenance project, which sought to obtain Americans' confidential voter information and compare that against federal immigration data all in an effort to call state voter rolls. We'll return to this whole question of compliance or lack thereof with court orders in a second, but just to note that despite all of this losing, DOJ said, who cares? And continued to sue California anyway. It immediately moved for a court order seeking to prevent the Golden State from counting these 20,000 votes. DOJ then seems to have attempted to manufacture evidence in support of its uncorroborated claims

by charging 28 non-citizens with having illegally registered to vote. The non-citizens who were charged were interviewed by the Los Angeles Times, and they said they have zero recollection of registering to vote. One of the people who was arrested is recovering from cervical surgery, rotator cuff repair on a shoulder and a double knee replacement. Just pointing this out because it seems like this might make it hard to get down there to register to vote. But DOJ insisted on conducting these arrests in a very public fashion, which makes it seem like these are show prosecutions. And it also initiated them at a moment when the cases are certainly not going to be resolved prior to the election.

That is, we won't know by the time of the election whether these are cases of mistaken identity or accidental registration or something like that, which makes it seem like these cases were designed to stoke conspiracy theories because the underlying facts won't be resolved before the election. Instead, it seems like a spectacle to feed the conspiracy propaganda beast. And Attorney General Todd Blanche is refusing to rule out the prospect of DOJ subsequently suing to stop states from actually certifying the vote. So again, that would likely be based on. on one of these crazy conspiracy propaganda theories. So take a listen. Is there any scenario in which DOJ would weigh in on that certification process or trying

to block states and certifying? I mean, is there any scenario? Yes. Of course, there's scenarios that we could all come up with hypothetically, you know, some doomsday scenario, for example, right? So I don't think it's proper to make any kind of conclusory statements about what's going to happen in the future because I have no idea what's going to happen in the future. It is not DOJ's intention to, and it's never our intention, to improperly interfere with elections or the state confirmation process or certification process.

But, you know, to say that there's no circumstances that we would ever do that. Of course I'm not going to say that. Of course I'm not going to say that. I mean, you know, I would never want to interfere in a state certification processes because federalism, but, you know, things happen. But see, California and Alaska. I mean, so, yeah, that is not a no from attorney. General Todd Blanche. On the question of voter registration prosecutions specifically, I think we can say thank you to our favorite institutionalist, Chief Justice of these United States, John G. Roberts and his

band of merry men and one lady, who once told the president that sham investigations and baseless prosecutions were within the scope of his executive powers and not something that he could be prosecuted for. So wow, I learned it from watching you, Dad. Turned out so great. Really one for the ages, as the chief was aiming for. So a hearing in DOJ's case against California is scheduled for this upcoming week, DOJ, which is definitely represented by the best of the best these days because DEI, that DOJ is arguing that having the League of United Latin American citizens and the NACP, LDF, intervene in the California case, quote, creates additional unnecessary work for the court and for the attorneys because the civil rights lawyers are, quote, filing motions, calling, and requesting meetings and briefing schedules, end quote.

Those damn DEI lawyers trying to do those lawyering things. I mean, just the jokes right themselves. I don't even know what else to say about this. DOJ, of course, is trying to make all of this even more of a clown show because after the federal district court failed to act within hours. on DOJ's request to expedite the TRO hearing, DOJ appealed the case to the Ninth Circuit saying that the failure to act with sufficient alacrity was effectively a constructive denial.

I don't know who needs to hear this, but that's not how appeals work. All of DOJ might need to hear this. Because these chuckle fucks are running an absolute parody. of legal proceedings. So prosecutors and DOJ cannot even keep straight how they are referring to the people who are supposedly unlawfully voting and unlawfully registered. Like, sometimes they're just suspected. Other times, it's likely. Other times it's confirmed, right? Like, it's unclear and it's all chaos. And DOJ also love this one, elected to make the real galaxy

brain move of telling the court that their DOJ's TRO motion in the California case. That was an emergency. But California's motion to dismiss, not so much. It's a Strodinger's emergency case. That's a very deep cut, and you have to read in order to understand it. So if you're a DOJ lawyer listening, crack open a book, figure it out. Schrodinger's cat. That's going to be the clue. Struck's scrutiny is brought to you by Quince. Do you know those pieces in your closet that you find yourself wearing on repeat? Maybe that sweater that goes with everything? Maybe the perfect pair of or the tea that you somehow always reach for first, those are the pieces that make dressing effortless and easy. And those are the kinds of pieces that Quince does best. Quince focuses on

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Let them know that Melissa from Strict Scrutiny told you all about how Quince-pilled she is. It's the best way you can support strict scrutiny. Strict scrutiny is brought to you by Zbiotics pre-alcohol. Some nights are planned. Some are spontaneous. Either way, I'm someone who thinks ahead. I drink Z-biotics pre-alcohol before my first drink of the evening. Zibiotics pre-alcohol probiotic drink is the world's first genetically engineered probiotic. It was engineered by Ph.D. microbiologist to break down acetylite, an unwanted byproduct of alcohol metabolism. So if you make pre-alcohol your first drink of the night and drink responsibly, you can enjoy your next day activities. Zibiotics has sold more than 14 million bottles and earned the trust of thousands, including all of us here at Strictney.

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Court for these seemingly show prosecutions, we can also blame the court for even more damage to our democracy. So last week on the shadow docket, I mean, excuse me, interim emergency docket, the Supreme Court blocked a lower court order that restricted New Hampshire's election guidance about the use of student IDs. Back in April, New Hampshire's Secretary of State ordered officials to avoid reviewing student IDs, even in conjunction with other documents, for voters who are having trouble establishing their identity when checking in at the polls or when they were requesting absentee ballots. A lower court blocked the guidance, probably because it would have made it harder for students who, get this, are more likely to vote for Democrats to vote. Well, guess what? New Hampshire Republicans took that personally,

and they went to Daddy Scotis on the shadow docket to ask you to please, please, please intervene to set these big bad students from bullying us, I mean voting. And Scotis said, hello, a state restricting voting? Did someone say this is a party? Because yes, please, I would like to play. And the court stepped right in

as expected right on time. Whambulance was there, nine-wam-wah. On the topic of the Supreme Court and Democracy or not Democracy, Justice Alana Kagan delivered some remarks at Catholic University Law School last week, where she said, quote, in all these areas, the court has blinded itself to the very deleterious effects of their rulings on how the political system works and has created a democracy that doesn't work as well as it should. In her remarks, she talked about how the court was undermining democracy through decisions

on voting rights and partisan gerrymandering and dark money in elections. She added, quote, I think the people of America look around this political system and think that all this money chasing all these political candidates is a nightmare. And they're right. Indeed they are because the Washington Post and Bloomberg have reported that PAC's political action committees that are backed by one Elon Musk have now spent over $400 million in the upcoming midterms. Turns out free speech, not so free. It's more in the ballpark of hundreds of millions of dollars. Can I take one small issue with Kagan's comments here? Sure.

I think she's right. She's generally right. I think, though, this idea that the court has blinded itself, they're not blind. Right. Yes. This is the desired outcome. Like, I mean, like, this is someone who wants to believe the best in her colleagues, and I love her for it. Yeah. I mean, like, maybe blinded here means, like, willfully ignoring, right?

They just choose not to care. But, yes, right. But, I mean, like, they know. This is having exactly the outcome. I mean, look, I would have phrased it as they give a middle finger to democracy. But, right, wasn't me making her remarks. I mean, she's also being more politic. I mean, like, it would be truly incendiary if she were to actually say the quiet part out loud. So we'll say it for her. We see you, Queen. Okay. All right. We all know that the new DEI, DOJ, is a little challenge when it comes to complying with court orders. And the last few weeks have been no exception. One case, where this played out in true sports fashion. I can see you, Brett Kavanaugh, leaning in. I'm talking about sports.

It concerns a golf course in East Potomac Park in the District of Columbia. Last spring, a complaint was filed alleging that, quote, in keeping with President Trump's efforts to remake the public spaces of D.C. in his image, the Department of the Interior and the National Park Service decided to destroy the East Potomac Golf Course and to build in its place a championship-style golf course suitable for professional tournaments. For those not familiar, it costs about $42 to play a round of golf at East Potomac. Thousands of people play each year. And a lot of them aren't grifting billionaires with crypto schemes who are eager to fund your failed sons Bahamas,

not a wedding weekend festivities, or deposit $2 billion in a slush fund for you to have access to. In fact, a lot of the would-be golfers at East Potomac are working and middle-class black people, the kind who used to work in the federal government. But now have a lot of time on their hands to golf. And these are the patrons of the golf course that Donald Trump has decided should not exist. The plaintiffs requested injunctions and restraining orders and the executive branch lawyers argued that an injunction was inappropriate because there's, quote, no final agency action here. This should remind you of what happened in the USPS case a couple of months ago. They said this, even though back in June, the president announced that, quote, it was determined that we will build one of the greatest golf courses anywhere in the world.

Work on the new course, which will go quickly, will begin on September 1st. Sounds pretty final to me. But again, it was all in the passive voice. And again, it was determined by whom that this. this was going to happen. I just want to remind everyone of that time when mistakes were made. Does anyone remember that? I'm actually referring to something that George W. Bush said in 2004 when asked about the Abu Ghraib detainee torture scandal. He said it again in 2007 in conjunction with the U.S. attorney firings. But if your mind went back to Tuesday, November 5th, 2024, I don't blame you,

because one might argue that mistakes were made there, too. Indeed. Indeed. Indeed. So the district court in the East Potomac case was initially hesitant to grant the plaintiff's relief, saying at one point, quote, the only reason I'm not making an injunction order is because I don't want to put people through contempt proceedings. I want to trust that people are acting in good faith. So what did the executive branch do? The Friday before a holiday, Indigenous People's Day, the executive branch announced that 12 hours later would begin clearing 529 trees from the course and proceeded to do so on a Saturday. Then they confirmed they plan to raise even more. The court immediately granted a temporary restraining order and scheduled a same-day hearing over Zoom.

The hearing did not go well for the government. At one point, the judge said, quote, I'm furious. If you're not a lawyer, this is bad. Very, very fucking bad. The judge then added, quote, I was hearing from everyone on plaintiff's side that this was going to happen. I said repeatedly, no, I trust the government. I trusted you all not to do precisely what you have done. shorter, judge, I was rooting for you. We were all rooting for you. And if you don't know what that means, you need to watch more television. I personally was not actually rooting for them. But sentiment appreciated. A government lawyer did protest to the judge that they, the government had done their best, to which the judge responded, quote, you did not do your best. You did your absolute worst. True. And somehow, somehow things got even worse because the government filed a motion to disqualify the judge, citing her, quote, histrionics. That motion was.

rejected. The government also moved to dismiss the case once again, saying there was no final agency action because any plans for this championship golf course were still merely conceptual and nascent. In Kuwait, as one would say. At this point, like women and their rights. Or women in their jobs, because this was the point at which the once and former White House Press Secretary Katie Zachariah entered the building. That same day, Katie posted a photo of herself and the president in the Oval Office with a blurred map, a map that people alleged showed East Potomac Park. Two days later, the president unveiled on Truth Social, obviously, the plans for a championship golf course. That post, the True Social one, made its way into a same-day order from the judge.

The order read, quote, the court takes judicial notice of President Donald J. Trump's 10.09 a.m. Truth Social Post. which states, quote, I am pleased to announce that the Department of the Interior, in conjunction with famed golf course architect Tom Fasio, has developed a plan to build a world-class championship golf course on the site of the current East Potomac Gulf Flanks located in Washington, D.C. Thank you for your attention to this matter. President Donald J. Trump. The court ordered the government to indicate whether it continued to take the position that there had been no final agency action and that, quote, at most, the president has given preliminary thought to rebuilding. East Potomac golf course. Shorter, Judge, sounds pretty fucking final to me. Exactly. At this point, the worst client in the world then decided to chime in with another post that read, quote, the U.S. Department of Interior wants us to take a terrible and very unsafe golf course

and make it into a great, safe, and prestigious golf course. They have an absolute right to do so. The experts at Interior are allowed to do this as of right. They do not need approval. Work is scheduled to begin immediately. The president then called this district court judge a crazed lunatic. Very temporary and nascent. That's what immediate means, right, according to these illiterate fools at DOJ, I guess. You got to feel bad for them because, like, do you though? They have to do this. Look at their client. Oh, my God. Do they have to do this? No, we don't. They don't actually have to do this. You're right. You're right. I mean, they might be unemployable. at literally every other litigation shop, given some of the antics. But anyways, the hearing that followed that post went about as well as you could expect.

The hearing ended with the judge talking about the death threats. She has received, quote, over a golf course. And she added, I don't think that's what the founders intended. Can't confirm. Yes. Any district judges who are facing, you know, this sort of behavior from the administration, please don't take it personally because the administration decides to thumb its nose at many other judges as well. Recall the Trump administration's political advertisement. So these are the ads that

were in support of the president and his second term and looked a lot like the president's campaign ads from 24. And they were reportedly paid for with taxpayer funds, all of which sounds very unlawful. Well, a judge apparently thought so and issued a temporary restraining order blocking the ads, finding that the money given to agencies, such as the Department of Homeland Securities and Customs and Border Patrol, is not authorized to be spent on political ads. Imagine that. Obviously, the money was only authorized to be spent flying around Crispy Nome on a sex jet where she would be dictmatized by Corey Lewandowski. Allegedly, allegedly, in hindsight, Corey probably should have tried to dignitize others because the New York Times reported that Lewandowski might be the subject of a DOJ inquiry. And with an emphasis on the hind part of hindsight, he might have had a shot with the president who was really into men's bodies and appreciating the male form these days. Although Trump does seem to be more of an ass man than a dignitized one.

In some ways, I personally welcome the era of objectifying men's bodies. But that might just be me. What are you talking about? What do you mean? What do you mean am I talking about? Have you not been following the president's speeches? I miss this. Is there like a speech about it?

Wow. Okay, so on the campaign trail, the president is thirsting over John Hustead's butt. Oh, okay. All right. I missed that. I totally missed that. I'm sorry. There's been so much going on. That's not the only example. No, fair, fair. I mean, I kind of like try to weed out the worst of it. And John Hustod's butt is kind of it for me. Well, unfortunately, we're going to go lower. Keep going by the end of the episode. Yeah. Anyway, glad I got to be the one to break that to you, girl. I mean, like, genuinely, I mean, I was first startled by the use of Digmatized. Didn't see that coming.

But this is also, thank you. Thank you for getting me up to speed. Back to this case. After a TRO was issued, the plaintiffs filed a letter drawing the judge's attention to the fact that the government continued to air ads in hundreds of television spots after the TRO was already in force. So, again, kind of a giant FU to the court. Here at least, DOJ. admitted that it did it. But it wasn't a giant FU. It was just an oopsie and said, yes, the ads had in fact aired. But according to DOJ, it was all no harm, no foul, because the judge had emailed out the

restraining order at 6.46 p.m. on Sunday. And government counsel did not forward it to their parties until 758 p.m. And all of the airing happened in that space between. And people didn't see the email until Monday and stuff happened. And I mean, you can't expect people. Mistakes were made. As were aired. Ads were aired. Right.

At least that was the government's line. But then last week, a plaintiff alerted the court that MAGA Inc. SuperPack paid to air a no tax on tips commercial produced by White House staff whose salaries are paid with taxpayer money. So a different kind of federal funding for Trump political ads or what seemed to be like Trump political ads that could test the judge's patients with the government. testing the boundaries of the temporary restraining order. Sounds like a presumption of regularity to me. I mean, so much for a presumption of regularity, I feel like presumption against DOJ, like filing any cases or any briefs, right? They need to get kind of preclearance for that at this point.

Presumption in favor of disbarring the DOJ. Right. Yeah. Strict scrutiny is brought to you by Sundays. We are what we eat, and so are our dogs. A long, healthy act of life starts with clean, real food nutrition every day, for your pup. Sundays for dogs is different. It is human-grade, real food. You'd feel good eating yourself. Sunday's recipes contain 80% plus all-natural meat, roughly twice the meat content

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So now to some Supreme Court stuff and more stuff that is enabled by the Supreme Court. So last week, the court put white supremacy on its docket formally, deciding to review a case that challenges the constitutionality of a school district's race-neutral, race-blind admissions policy. The plaintiffs argue that that race-neutral, race-blind admission policy is actually racial discrimination. The plaintiffs say that the policy amounts to impermissible racial discrimination because it was designed to, and does advantage students who are racial minorities. So it doesn't specifically use race, but it has the effect of advantaging racial minorities. So anytime a racial minority is ever advantaged in the United States, you should understand that to be impermissible racial discrimination. So the policy that is being challenged here affords a preference to students from school districts

with higher poverty levels and gives a boost to students who qualify for need, assistance with school meals, so free lunch assistance. And the plaintiffs note that the policy resulted in a more racially diverse class. You know how that could change? Reparations, bitches. That's how that could change. Anyway, now, it's obviously illegal to have a race-neutral policy that focuses on socioeconomic disadvantage. It's obviously legal because it will always have the result, apparently, of advantaging racial minorities, and that can never happen. So guess what, folks, looks like class-based affirmative action is no longer going to be okay and will no longer be a legitimate alternative for affirmative action, or so it seems. Despite us being promised that that was the okay kind.

But more generally, the theory in the case is the policy is illegal because it was designed to foster racial diversity and had the effect of, you know, actually fostering racial diversity, which is why, you know, I am calling it the case that puts white supremac. on the docket since... Because the problem seems to be just thinking about diversity. Well, but also the existence of diversity, right? Since this theory seems to demand school admissions policies, you know, to preserve racial hierarchies and result in overwhelmingly white schools. So put a pin in this because Melissa and I are actually writing on the broader issue and theories in this case. So stay tuned for that. So enough of that race Ipsi Lockwooder, the thing speaks for itself. Black people are here. It's obviously a problem. Let's talk about some work that's been going on at the court, or rather work that's not going to be happening at the court because the justices

decided not to grant certiorari. So we talked in the last episode about some interesting cert grants that came through two weeks ago. We did not talk about the cases that the court declined to review. And there were some pretty interesting things that happened. So we want to talk about one specific non-grant from the last two weeks. The court denied certiorari in a case called BMG Rights Management v. Vetter. It's a pretty significant copyright dispute that comes out of the Fifth Circuit. It was also the rare case where we got a reason for the denial of certiorari. The court apparently lacked a quorum to hear the case because four justices recuse themselves, justices Sotomayor, Gorsuch, Barrett, and Jackson, all of whom have book contracts with publishing imprints owned by BMG's parent company Bertelsman.

They did not note this in the cert denial order, but we have noted it by doing a little digging. There's a lot that one could say about all of this, but one interesting aspect is that perhaps, if this is the reason why these justices decided to recuse in this particular case, it may reflect the insane consolation. that is happening in all facets of the media. Bertelsman is a massive media enterprise, among other things. It owns Penguin Random House, the world's largest trade book publisher, which itself includes over 350 independent publishing imprints. Its vastness apparently means that it's going to be very hard to haul the conglomerate before the Supreme Court at a time when so many of the justices may actually have business

dealings as authors. with some of these imprints. On the topic of non-grants or non-issues, I wanted to keep tabs on our Overton Window Watch on all things SCOTUS reform. So let's play a clip we got. And I think instead, we should seriously look at expanding the court while the Democrats are in power. You know, it used to be that you'd have one justice for each circuit. We now have 13 circuits. We should have 13 justices. What did you make of this one?

Well, one, I think maybe Hillary Clinton had herself a hot Supreme Court reform summer. Like, that seems possible. At least a hot Supreme Court reform September. I mean, I'm just going to say that this is proof positive that this stuff is getting more and more traction. People are fed up with this court. And I think everything should be on the table. Like, I had this big conversation at this New York Historical Society event where Andrew Weissman and I were in conversation with Bob Bauer. And, you know, there are questions about whether this was a good idea. And I was just of the view, like, listen, it was like universal pre-K in New York City. People started first with the idea of universal childcare. That was massive and ambitious. And but talking about it meant it was possible to get to universal pre-K, which was more modest, but still really substantial, but more palatable to a lot of people. And I think if you go big on court reform, you're actually going to get things that may matter to people, even if it's not the biggest things that you wind up wanting.

And Supreme Court expansion, not the biggest thing. So, right? Like, yeah, absolutely. Okay. So another supposed non-issue came up when Senator Susan Collins offered some retrospective thoughts. I'm very disappointed in his vote to overturn Roe v. Wade. There was no way for me to anticipate that. It's so weird.

It's so weird because I remember people and a person. particular person warning, warning, that this, the overruling of Roe would happen. So let's play back that tape. As you've heard from women like Alicia Baker and Liz Weintraub, confirming Judge Kavanaugh to the Supreme Court would threaten people's ability to make fundamental personal decisions, including deciding whether to have an abortion. Judge Kavanaugh's record in Garza suggests that rather than respecting precedent, he will undermine or ignore it. And in so doing, he will provide the necessary fifth vote that would utterly eviscerate the right to abortion. And make no mistake about it, a vote for Judge Kavanaugh is a vote against Roe. It's so weird, that voice sounds familiar.

That voice sounds so familiar. Why does it sound familiar? Who might that have been? That wise Cassandra. Chairman Grassley, ranking member Feinstein, thank you so much for the opportunity to appear at these hearings on the confirmation of Judge Brett Kavanaugh to the United States Supreme Court. my name is Melissa Murray and I'm a professor of law at New York University School of Law. Yes, that was our very own Melissa Murray telling the

Senate that voting to confirm Kavanaugh was a vote to overrule Roe. So in some ways, this is like the origin story of this podcast, you know, the Cassandra thing, right? It kind of started when I started online friends talking you, Melissa, because like we had never met

and I was just like huge fan, huge fan of your work. No, I had Didn't I write your tenure letter before this? So I actually knew of you. No, because I didn't have tenure at that point? Yeah, but didn't I had to write something for your mid-career? Because I remember writing a letter, like, going through your file. And I had to read your work.

So I was a fan of you, but then you, like, emailed me out of the blue. Maybe it was like a Jotwell thing or something. Maybe. Oh, it was a Jot-Wall thing. You're right, you're right. That's what it was. And I really, and I, yes. So we were mutually.

We found each other. We found each other. But Susan Collins definitely helped us. So, man. Damn. Why do the Senate when you have a perfectly good career waiting for you as a matchmaker? Or in stand-up comedy because it's fucking hilarious that, right? You had no idea. Like, girl, it was in your fucking party's platform that they were going to be nominating justices to over the row. I'm so surprised and disappointed. I'm like, ma'am, he was literally put on the court to do this. That's what they said.

I just, I can't listen to her anymore. Like, it just genuinely, I'm stunned. that it is close in Maine. I'm just stunned. I mean, I don't know how you do this after this woman literally just played in our faces with this. I know. I know. God. Anyway, speaking of more annoying people.

Speaking of more annoying people, in more news that is directly traceable to the United States Supreme Court, is grifting the new girl power? Are grifters, the new girl bosses? well, only if they're Maga women. Because the New York Times broke a pretty incredible story about another Lady Maga side hustle. One, Alina Haba, former something or other in the district of New Jersey. I'm saying something or other because a federal court concluded that Haba was not lawfully appointed to be the U.S. attorney for the district of New Jersey and therefore never lawfully exercised the powers of the U.S. attorney.

But leaving that to the side, there is more to discuss. So the New York Times reports that Juan Julio Herrera Vellutini, the billionaire banker, really wanted a pardon even after he had secured an unusually lenient plea deal in which he pled guilty to a misdemeanor campaign finance violation after facing felony bribery charges. So his lawyers tried the usual routes having his daughter donate more than $3 million to a super PAC affiliated with Trump. Unfortunately, that didn't do the trick at least this time. At least this time. Yeah. So the Velutinis decided to up their game. They hired Alina Haba, who at the time was an advisor to the Department of Justice.

The Times reports that the arrangement gave Haba, quote, 10 million a year for four years with a guarantee of 50 million for Haba when she became general counsel of a company, Concord Partners, that was set up in the fall of 20, The business of the Concord Partners remains unclear and the company has no public profile. I guess that's suspicious. And by sheer coincidence, weeks after Haba began her work at Concord Partners, the president gave Velutini a pardon. So weird.

And at the time, Haba, while serving his general counsel of Concord Partners, a company that has no public profile and only began its existence in 2025. At the time, she was General Counsel of that enterprise. Haba was also a special government employee. So I guess she is like the J-Lo of the DOJ, like a multi-hyphenate, singer, dancer, actress, general counsel, special employee, U.S. Attorney, who is to say? Lady Magas are real multi-hyphenates these days. Because, you know, as we sat down to record, we learned that the first lady Melania Trump had secured a ceasefire between Russia and Ukraine, although it was localized to Oleshki. That's what the White House reported. What can't they do?

Fashion. No, they can't do fashion. Also can't do good movies. Melania Trump is actually very, very fashionable. Like, I hate to say it. She wore some, not the, you know, do I even care jacket. Like, whatever other stuff is actually. I mean, and when she wore the Carmen San Diego spy

at the inauguration to literally stop her husband from coming through her southern border, I was like, genius. Yes. But back to the whole country could do that. The other multi-hyphenate we were talking about Al-Waba, she's denied that she was paid to secure a pardon or that her work for the company had anything to do with securing a pardon. There is some possibility that this story has come out as part of Haba's feud with another member of Trump world, Richard Grinnell. So Haba has said Grinnell misallocated a donation Haba's husband

made to the JFK Center for Performing Arts. And it seems like all these people probably have dirt on one another. So just wanted to put it out there. Alina, Richard, everyone else in Maga world with an axe to grind or back to stab, our DMs are open. I love internecine warfare in the Maga ranks. It's thrills me. While that corruption does not yet seem to have triggered Trump and or the DOJ's ire. DOJ did find some corruption it was concerned about. And shockingly, it involved another black woman having a job. DOJ indicted Virginia State Senator Louise Lucas, who is the president pro tempore of the Virginia Senate and one of the states more powerful Democrats.

She has also been a very high-profile critic of the Trump administration and a supporter of the state's responsive redistricting campaign. This is redistricting that sought to counter the extreme unprecedented mid-cycle redistricting that the president demanded red states engage in. So the indictment in this case alleges that Lucas and her family illegally ran a recreational weed business before Virginia had legalized weed. Who's going to tell them that this is the plot of a Mary Louise Parker TV series from the mid-2000? Can't read, can't do math, can't watch TV. Can't do anything. Nope. So the day before this indictment was released, Assistant Attorney General for Civil Rights, Harmeet, U.R. Hose, Dylan, boasted that DOJ was, quote, indictment maxing. I know. Just I think she might be the best poster in the administration. I'm going to put that out there. The indictment of Senator Lucas is reportedly the product of a corruption investigation. Actually, let me wind that back. The Trump administration continues.

with a corruption investigation. That is so weird because this week we got another pro-puplica story about another public corruption investigation that the second Trump administration actually killed. So this is on the heels of the pro-publica story detailing how the second Trump administration effectively ended a corruption bribery investigation into Senator Susan Collins. She of I could not have known that Brett Kavanaugh would vote to overrule row, even though Melissa Murray tried to tell me infamy. This was also on the heels of ProPublica's reporting on failson John Jr.'s not quite a wedding weekend festivities that apparently was funded by a rushing boxing oligarch, but leaving that to the side.

Anyway, ProPublica can't stop, won't stop. And its latest story is that Senator Lindsay Graham, rest in peace, and Jim Clyburn were also saved from bribery investigations. These investigations centered around allegations that a government contractor Navitech was engaged in a wide range. scheme to effectively purchase government contracts by offering donations to selected officials, including Lindsay Graham. The ProPublica story opened with an anecdote about a dinner attended by Graham and executives and lobbyists for Navitech at which Graham allegedly agreed to steer a $10 million government contract to Navitech in exchange for a $100,000 donation to Graham's re-election campaign. So according to ProPublica, quote, Navitech's CEO confess to federal agents that his

business model was basically bribing public officials in exchange for contracts. And he said he had Right. He said he had engaged in these transactions with Senator Graham, Jim Clyburn, Joe Wilson, both, you know, representatives in Congress. And this is also the same company that allegedly paid to play with Senator Susan Collins. But investigations into those allegations ended when Trump gutted the units in DOJ and FBI that investigate public corruption because this administration is the never-ending gift to grifters. Now, Clyburn and Wilson's offices have issued statements that are effectively denials. Plyburn's comms person said whatever a donor may think or say, a donation would never cause the congressman to increase his support for the donor's request.

Representative Wilson's office said he had always abided by federal election commission regulations. This all transitions nicely to our next segment, which is about how MAGA men are still covering themselves in glory. Can't be outshined by those lady MAGAs, whether it be Kimberly, honey, please, Gilfoyle, Alina, I was something of New Jersey Haba or Harmeet, you are hoes, Dylan. And we should also add in, Susan, I had no concerns about Brett Kavanaugh Collins. Can't be outdone by those ladies. So the fellas have taken their turn at the podium. So, yeah, let's take a quick run-through of the greatest hits of recent times.

As always, we begin the original new DEI segment with Pete Kegsbroth. So the Washington Post reports that Kegsbroth really wanted to play with President Dwight Eisenhower's famous globe that Eisenhower had used during World War II. Kegsbeth wanted to play with that globe. Alas, his dipshit DEI staffers dropped it while moving it and ripped a big hole in the side of the globe. Wow. Writers, like, the metaphors just keep coming.

I wish they were a little bit more subtle. I mean, like Pete Hegseth staffers literally ripping the globe apart seems a little on the nose, right? A little on the nose. A little bit. A little bit. But with that in mind, I don't even know how to introduce the Vanity Fair piece about Jared Kushner because it is legitimately insane. The piece is an excerpt from a forthcoming book by Matthew Cole

that is titled Princes and Thieves, Jared Kushner and Muhammad bin Zayed's secret plot to remake the Middle East. And listeners, in the excerpt from the book that appears in Vanity Fair, Cole reports that Saudi Arabia appears to have set up a multi-million dollar. slash fund for the Cush. Now, a word of caution or several words of caution are required here because the article and the excerpt doesn't detail the sourcing or site document. So that is a major word of caution. And Cushner, for his part, has offered an on-the-record denial and his lawyers are calling this piece defamatory. So keep all of that in mind. But wow, if this is true, this is actually really incendiary. Exactly, right? Like a chance of this being true is wild, because just to give you a highlight, this all supposedly came out when the GRU Russian intelligence hacked Jared's phone. And then Dutch intelligence recruited a GRU spy who gave them the information from the phone, which is that Kushner had access to two bank accounts in which MBS, Crown Prince of Saudi Arabia, an Emirati ruler, Mohamed bin Zayed, deposited money. These two sugar daddy foreign leaders allegedly put at least two billion.

into bank accounts on which Kushner was a signatory, meaning he could make transactions with the accounts. The excerpt indicates several senior Trump administration officials said Trump was unaware of Kushner having any presidential authorization to access a foreign government bank account. And then there's this eye-popping statement from Kushner's counsel who said, quote, Kushner did not make any agreements or arrangements with leaders or officials in foreign countries that were not agreed to by the president of the United States. Is that a bus, right? Or a truck I hear that someone is being thrown under? Perhaps. Sounds like a Qatari jet. And listeners, that is not all.

It wasn't just Emirati and Saudi leaders who may have been in on this alleged slush fund. Apparently, according to this report, which again has not been sourced and verified, Apparently, according to their report, Israeli Prime Minister Benjamin Nanyahu learned of the money in one of the banks and encouraged Kushner to transfer it and deposited in the Israeli central bank. So what could go wrong? That's just hanging out there. While it seems like it will be impossible to top that story, I think listeners, Vivek Ramoswamy was up to the task. But before we go to that psychotic misogyny, I wanted to play a clip of the Republican candidate. for Senator of my state, Michigan, Mike Rogers, who was talking about a possible election tactic.

And I've been telling them, you know what, let's put police officers, retired for off-duty police officers as our poll watchers in the truck. Because go ahead, try to intimidate them. Yeah, please. Yeah. What's that? We're trying to find them. I mean, they wouldn't be able to wear their uniforms, but they would, you know, you know,

all you've got to do is open your jacket. You see the badge on the belt. Rogers reportedly said this in May, but when he was asked about these remarks more recently, he didn't disavow them and said he saw nothing wrong with it. You know, the tactics that Rogers is describing are, of course, reminiscent of a strategy that historically was used to scare, intimidate, and disenfranchise voters of color. Quick question about that clip. Did I hear him right when he was sort of talking about like good luck trying to intimidate the police officers? That's what I think he was saying. Like, good luck trying to intimidate the police. He's going to vote. I'm like, I'm here to take it to the cops. Like, I want to see cops when I'm voting. Well, it's this insane conservative grievance complex that, again, is not rooted in reality, right? It's their myths and conspiracies about voter fraud. And he's all in on them, it seems like. I mean, this is the same man who dispatched his wife in very tall, high-heeled shoes to campaign for him. And I'm like, sir, what are we doing? Ma'am, what are you doing? Put on some flats if we're really going to do this. What are we doing? I don't know.

It just didn't make any sense. She was just like teetering around. I thought she was going to like genuinely break her ankle. But justice for Mrs. Mike Rogers. She's got to be married to this anyway. Yeah. But finally, we arrive. We will end on the worst person in the world, at least this week. Although I think he really made a strong play for worst person ever. Vivek Ramoswamy. So the Republican candidate for governor of Ohio, a former presidential candidate and a guy who was too annoying to continue working at Doge. Yes. The guy who was too annoying for Elon Musk decided to go all in on the worst political ad ever. And this is in a world in which the federal government is using taxpayer money to make political ads for this president. The ad, which Vivek Ramoswamy apparently decided to pour $4 million into airing, features the estranged mother of Amy Acton. Amy Acton is, of course, Vivek Ramoswamy's rival for the position of governor of Ohio.

which is apparently going to be a very close race. Enter this ad. To describe this ad, featuring Amy Acton's estranged mother, really does not come close to capturing what the fuck happened here because this is some real election fuckery. Acton is estranged from her mother. The reason for this estrangement is because her mother cited with her stepfather, the mother's husband, and fled the state with him,

after the stepfather was accused of and indicted for sexually abusing Amy when she was 12 years old. So her mother stayed married to this man after these accusations were made and he was charged. And she basically continued to marry him and live with him and to be estranged from her own daughter who claimed apparently relatively credibly that this man had harmed her in the most profound way. while she was a child. Also, she had married this man after he had already been indicted for incest, abusing his own daughter. Now, as, you know, the description suggests, Amy and her mother are estranged. They have not spoken since the 1970s when Amy testified before a grand jury about the abuse. Amy and her brother were removed from her mother's custody, and Amy's mother, who sided with, again,

her husband, the accused and indicted pedophile, cut an ad for Vivek Ramoswamy, accusing Amy. of lying about her childhood. There's no way to convey the utter grotesqueness of the ad or the choice to double down on it. So Amy Acton's brother issued a statement which the Acton campaign distributed that I feel like we need to read and I will. It was, quote, it's not surprising that Vivek Ramoswamy has stooped to such a despicable low as to attempt to turn the sexual abuse Amy endured at 12 years old from our birth mother's husband into a political talking point. after he was arrested and Amy and I were removed from their custody, our birth mother stayed married to Amy's rapist until he died. This desperate disgusting attack reveals exactly who Vivek Ramoswamy is at his court, a pathetic excuse for a man who is willing to hurt anyone as long as it gets him what he wants. And J.D. Vance said, hold my beer.

He, of course, refused to condemn the ad. And the president of the United States seems to have announced his affirmative support for it. So this is the party of Abraham Lincoln people. Piling on to a 12-year-old rape victim come candidate for governor of Ohio. Just nauseating. So Aaron Ryan and Jane Koston discussed this horrific psychotic misogyny more in depth in the most recent episode of hysteria, which you should absolutely check out. Okay. That is all for the news. That was a lot of news.

I feel like I need to take a shower right now. Thank you, Republican Party. Like the need to cleanse myself is directly related to your shenanigans. Stay tuned, listeners, for a conversation that will not make you want to take a shower. Actually, it might when you hear some of the things that are going on. But this is a conversation that Kate had with Rachel Sheldon about her new book, The Political Supreme Court. Structs yearnies brought to you by Cook Unity.

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slash strict. Hey everyone. My name is Elijah Cohn, and I've been a producer here at Cricket Media for a decade. I love making our shows with the smart, creative people who work here and hearing from all of you who listen every week. But the thing that I'm proudest of is that video we made of Yvette Ramoswami grunting while hitting baseballs. No, wait, sorry. The thing I'm proudest of is the work we do through Votesave America. See, we don't want our shows to only leave you feeling anxious about the state of the world. We want to give you something you can actually do about it. Just this year, our listeners have raised millions of dollars and filled thousands of volunteer shifts to help candidates and causes

in the 2026 midterms. And we will be able to do that. we have no plans to slow down as we head into 2028. As far as I know, there's no other media company that does what Cricket does. We make entertaining, thoughtful content that brings people into politics, and then we give them a direct way to get involved. And if you believe in that mission, one of the best ways to support us is by becoming a paid subscriber. Your subscription helps us keep making the shows you love and building a media company

that doesn't just talk about politics, but helps people change them. And if the mission sounds great, but you feel like you need some sweet subscriber benefits to get you over the finish line, we've got you covered. Subscribers get ad-free shows, plus excellent exclusive podcast, newsletters, and much, much more. So thank you for listening and supporting what we do. Head to crooked.com slash friends today to learn more and become a subscriber. For this conversation, I am delighted to be joined by Professor Rachel Sheldon

to discuss her forthcoming book, The Political Supreme Court, a forgotten history. I am going to hold up a copy of it right here. It is available on October 27th, although I think you can actually order it right now. Rachel is an associate professor of history and the director of the George and Anne Richards Civil War Era Center at Penn State University and a leading historian of the United States Supreme Court. In her latest book, The Political Supreme Court, Rachel takes us back to the first century of the nation's history and tells the story of a Supreme Court that most of us, even those of us who spend a lot of time thinking about the Supreme Court, would consider almost unrecognizable. Today's justices are fond of telling us that they operate above the fray of partisan politics. But the story Rachel tells in her book is one of basically 100 years of a quite explicitly political institution, both by design and in practice.

So the book kind of takes you on a rollicking tour through boarding houses and dinner parties and circuit courtrooms and newspaper columns and basically shows justices pretty intimately involved in the rough and tumble of politics. and then explains how and why and when that changed. It is a fascinating history, and I am super excited to discuss it. Rachel, after that very long wind-up, welcome to the pod. Thank you so much for having me. So obviously I laid out the basic frame of the book.

And as I said, the book's early pages contrast our image of the court today, and especially what you describe as the court's sort of self-made reputation as this kind of independent clerical order separated from the people with the image of the court in the 19th century. That political history is the forgotten history at the heart of the book. But before I ask you to tell us about that forgotten history, can you just say a word about the conventional story that you set out to dismantle? And at what point you decided you wanted to write this book to challenge or counter that narrative? So the basic narrative that I'm trying to counteract is the longstanding Chief Justice John Marshall created judicial supremacy with Marbury v. Madison and formally separated the court from politics.

So many accounts of the court start in the 1790s with a very political court that is then changed by John Marshall. And this is just really not true. Lots of historians have already debunked this concept. But I wanted to show exactly how it worked, that the politics of the court actually were very open and clear and that Marshall was as political as anyone. And so it took about 100 years for this perception to change. And the Marshall myth was really a creation of the late 19th century. Okay. So as you say, right, that kind of centerpiece of the constructed narrative is that John Marshall in Marbury v. Madison,

and you write that the lawyers and politicians who created and promoted the Marshall story and others erased the long history of constitutional contestation and conversation and authority that happened outside the Supreme Court and instead proclaim. a judicial power for the court that had never existed. So can you tell us a little bit more about the gap between the mythic Marshall that I guess he projected, but also that was constructed over time, and the real one who operated in thoroughly political ways? Yeah, I think we imagine Marshall to be this sort of grand constitutional thinker. And of course, he was very smart guy and also very savvy on the court. But one of the reasons that he was smart, and politically savvy, is that he was able to engage in constitutional conversation outside the courtroom and to promote those constitutional views through newspapers, through social relationships,

and especially through his relationships with the staff of the Supreme Court. Elias Caldwell, who was the clerk of the Supreme Court in the early 19th century, was an acolyte of his and ran the local newspaper. And as a result, you see sort of Marshall's views being carried through. through into the newspaper politics of the time. This is like standard fare for justices of the 19th century. Will you say a little bit more about that? So what were they doing in the pages of the local newspapers? They were making arguments both about the Jefferson administration and about the decisions in the Supreme Court. The Jefferson administration, you know,

Marshall and Jefferson famously hated each other. Even though they were like distant cousins, right? Yes, they were related. But they famously hated each other. I think in part of Jefferson, was a little bit jealous of Marshall because he was an incredibly sociable and well-loved guy. His nickname was General Barbecue, which was sort of not lovingly bestowed, but it was because he was very involved in a barbecue club that really was like the center of political and social life in Richmond. And so when he is engaging in this kind of conversation, what he's doing is promoting his views through newspapers. So he famously wrote for newspapers in response to criticisms of his decisions, but also in promoting views of what was the Federalist Party in the early 19th century in opposition to the Jeffersonians. And when he's taking positions and defending positions, say, in the newspaper, and those are in some ways defending the federalist kind of vision of a relatively powerful national government as compared to sort of a Jeffersonian sort of smaller federal government and more power residing.

in states. So these are constitutional arguments and their political arguments in some sense. Are they partisan arguments as we would understand them today? Well, it's a little bit tricky because partisanship was really different in the 19th century. It was more fluid. Parties sort of rose and fell as the issues changed. I actually think Marshall was a reluctant federalist in some ways. He liked some of the federalist policies, but I think ultimately he would have preferred to see a change in parties, you know, end to the Federalist Party and a new party that had some of his own views. But definitely there were partisan arguments being made in relationship to Jefferson. So the Washington Federalists, which is the paper that Elias Caldwell, edited, was a Federalist

paper because every newspaper was associated with some kind of partisan organizing, whether that was on the state or local level or on the national level. Okay, so let's shift a little bit. So already this is sort of startling as a revelation that John Marshall's like panning up heads. But you talk about these other venues in which the justices really engaged with politics. So you talk, you know, we'll put the newspapers in the kind of outside the courtroom political activities column. You also talk about the practice of circuit riding where the justices actually sit in places far from Washington, D.C. as this expression of judicial representation. So I want to hear a little bit about that. And then also inside their courtroom where they did not always command kind of ultimate authority over the United States Constitution, but participated as you're starting to kind of allude to in these debates about the nature and function of the government and the Constitution.

So can you say a little bit about both of those venues in which this constitutional contestation is happening? So judicial representation is a thing that we don't really know anymore, but it was the idea that justices were representative of their. regions of their circuits. So each justice was matched with a circuit. You had the same number of justices as you had circuits. And as a result, you had this relationship, close political relationship with your circuit. There was the option in the 19th century to take some cases to state court as opposed to federal court. And part of the idea was to breed this kind of, you know, comfort with going to the federal courts. And to give. those courts legitimacy. So this is all by design that you have these justices that are balancing

the nation's ideas when they come to Washington and also that they are creating a real support for the union and for the nation as a whole by providing this space in the federal courts. And circuit writing, which is the practice of going and sitting in these courts, was really, really unpleasant, but it was very important. And for a hundred years it existed. So you know, circuit writing sometimes thought of as like this backwards practice, but in fact, it was like impossible to get rid of it because people thought it was so important. In terms of the courtroom in Washington, I think this is a thing that we don't always imagine to be the case because we associate constitutional issues so closely with the Supreme Court. But in the 19th century,

there were many, many, many constitutional issues that did not make it to the Supreme Court. It was not that easy to get a case like that to the court. And those cases that did make it to the court, there was often a response by Congress, by the president, by state legislatures, and by like groups of people who may or may not have appreciated what the argument was. So if you think about the justices as not having that final authority, you can see how well their arguments represented a theory of constitutionalism that is not necessarily the same as authoritative. Our listeners will know that we have talked a lot in the last month about Nico Bowie and Daphne Renan's masterful new book supremacy.

And there's, I think, a lot of kind of resonance between that book and this one. There are, you know, they tell a lot of historical stories kind of focus largely on the pushback that happens around the Civil War and Reconstruction and then in the New Deal era. And this, I think, fills in with even more kind of factual material that core thesis. which is that the Supreme Court's word was not viewed as final, like, at all. And the debate only started sometimes, but the Supreme Court kind of weighing in. And as you say, often the court wasn't involved at all in these constitutional debates. Okay. So another, I think, really fascinating bit of history that you excavate, and I had known bits of this, but certainly not the way you pull it together,

was just how many justices of the Supreme Court in that first century of our history actively sought The presidency? This is wild. Will you talk about it a little bit? Yes. I mean, this was my favorite thing to research because I kept running into justices that were presidential candidates. I had only known of a few.

Like, that's, yes. They could be crunch the numbers. It might be a majority. More than 30 percent. Yeah, more than 30 percent of justices in the first century were presidential candidates. And one thing to know about the presidency in the 19th century is that you did not actively campaign. You did not seek the presidency.

you had to be brought to that station by the people. And so it was inappropriate to campaign. So some of that history has been harder to see, I think, because it's not in the kinds of spaces that you would normally look for presidential material. At the same time, these guys are writing all the time to try to promote themselves. So some of these justices would, you know, like have newspaper friends publish pamphlets supporting them. They would publish weekly newspaper articles about their candidacy. They would spend all this time talking about their policies. And I think actually the presidential runs are a good way of thinking

about where justices stood because they often talked about their political positions from before they were on the court as continuing while they're on the court. So there's no sort of barrier there where you just leave all your political positions at the door and move on. from there. You're taking them with you. And because all these folks come from political positions before they get on the court, there is an expectation that they are going to have political opinions. You know, it doesn't stop really at the kind of turn of the 19th into the 20th century. There are, our friend Cliff Sloan came on to talk about a wonderful book he wrote about the many justices that FDR put on the court. But like among them, a bunch of them vied to be FDR's

running made in 1944. Like Douglas was like working super hard. He was kind of the runner up. So that is a thing. that endures a little bit beyond the period that you were focused on. But the prevalence really was wild, and I think maybe better than any other single fact, just illustrates how intimately connected these just just just constitutional politics or high politics, but like actual partisan politics, thinking about running for, and even if not, in a kind of contemporary sense, president. So in addition to unearthing this trend, you talk about a lot of really fascinating characters and stories, and I wish we could cover all of them. We definitely came So maybe I was going to ask you about one or two.

So Thomas Todd of Kentucky, who was the first Western representative to join the court, like, tell us a little bit about him. I didn't know anything about him. Well, there's this amazing exchange between two law professors from, you know, about 45 years ago about who is the most insignificant justice. And Thomas Todd is, you know, like the feature of those. Oh, so he does have some distinction, which is that. I somehow missed him. Yeah. But I think that this is very illustrative of sort of.

the difference between the court in the 19th century and today, they evaluate him based on how many opinions he had on the Supreme Court. And that is just not the way that you should think about a justice's role. So Thomas Todd is the first Western justice, Western in quotation marks, because he is from Kentucky. And so the West in this period is Kentucky and Ohio and Tennessee. And so in 1807, Congress passes the Judiciary Act of 1807 that creates this Seventh Circuit. And it's really important. because Todd helps bring the West into the United States through the courts. He is a representative of this area. And the way that people talk about him constantly is that he is a representative of this area. And he remains very tied to local politics. He's really involved with the governor, with a governor's race, and then with a governor during the War of 1812 and beyond. But he's a fascinating character because he's so little-known. own, but also, I think, quite important. Yeah. And again, important in ways that we need to sort of shift our understanding of because, right, it's not decisions, you know, in argued cases, are not

the entire sort of coin of the realm when it comes to significance in your telling. So let me ask maybe about one other, and that is Justice John Archibald Campbell of Alabama, who was the only justice from a seceded state to resign from the U.S. Supreme Court. And within 18 months of resigning during the Civil War, obviously. He becomes the Confederacy's assistant secretary of war, I believe. Can you tell us a little bit about him? Yeah, so Campbell had a really serious political career before he got on the court and was very tied to Alabama politics. He actually did not initially want Alabama to secede and was quite pushy about it and used his position on the court to try to argue against Alabama seceding. He was, he hated Abraham Lincoln. He had nothing good to say about him. But he was, he hated Abraham Lincoln. He had nothing good to say about him. but he didn't think it was appropriate yet to secede in 1861. Ultimately, when Alabama does leave the union, he joins them. And then, yeah, there's no Confederate Supreme Court.

So he doesn't go to a judicial position. He could have, I suppose, been on a lower court. But he instead joins the cabinet. And he's quite critical, actually, of Jefferson Davis during the war. But it doesn't mean that he's not engaging in these political activities. And then after the war, he becomes quite a famous lawyer, really one of the most evil men in American history in the way that he brings cases to the Supreme Court to try to abend reconstruction by using the reconstruction amendments. Yeah. So maybe let's stay there in the Civil War and then into the reconstruction period.

So Abraham Lincoln gets to fill five seats on the Supreme Court in four years. And you might expect that to fund a. fundamentally transform the federal judiciary or at least the Supreme Court and turn it into something that is, if not going to affirmatively facilitate the project of Reconstruction, not to stand directly athwart it. But that doesn't happen. So can you talk a little bit about how Lincoln's appointees end up, you know, long after Lincoln's assassination thwarting some of the most important aspects of reconstruction? Well, so I think one of the most important things to recognize about this is the fluid party system is what promotes this. So during the war, Lincoln becomes a member of the Union Party, which is also a forgotten party. We sort of think about the Republican Party carrying all the way through. But in fact, he's part of this Union Party movement. And all the people who join the court during Lincoln's years are also part of this Union Party movement. The Union Party dies after the Civil War, probably because Abraham Lincoln dies, although there are efforts to keep it going. And as a result, these folks go into new parties, different parties. some parties that existed before, including the Democrats, and they do not have the same kind of approach to reconstruction issues as they did the war. Lincoln nominates them because they're all pro-war. They want to be involved in the union war effort. And that's the most important thing to him. Because parties are not permanent, he expects the issues to change.

And so there's no reason to think about it as a partisan matter beyond the partisanship of the moment. Fascinating. Okay, so maybe let's shift now to the transformation that you pegged to the kind of 1880s and 1890s when the court that you're describing this highly political, actively engaged in partisan politics of the day really changes into something that looks more like the image, at least, of the court we have today. There are some changes that have both to do with the demise of the circuit riding practice, but also to kind of look. larger dynamics in the 1880s and 1890s. Can you just talk a little bit about what changes? So there are a lot of big changes. One of them is the end of circuit riding, which is really important. So circuit writing had become more and more difficult over the course of the 19th century because the court's docket had started to expand and the lower federal court docket had begun to expand substantially. So part of the reason for that is the reconstruction amendments open up all these important reasons why the federal courts should be getting involved in major constitutional problems. But the effect of that is that

more and more important issues come to the federal courts and then to the Supreme Court. And they also use that authority to expand their power through corporate personhood and some of the other things that I'm sure you've all talked about on this show. So that's one really important thing. You also have the rise of a professionalized legal movement. And I do think Nico and Daphne talk about this a little bit in their book, too, because I think we have the same kind of moment in mind of when things begin to change. The legal movement that sort of says law is the heart of the Constitution and politics can no longer be what the Constitution is about, they are really responsible for changing this narrative of what the court was in 1803 when Marshall issued Marbury v. Madison versus what it actually was, how it actually operated in the first 100. years. So those folks really push for a change in the way that the justices relate to the people. And while they were riding circuit, they were very much engaged with the people. As long as they're there, they have to answer to the people who are quite angry with them on certain occasions. But after circuit riding ends, they're located in Washington. They're very much isolated in that way. And that looks a lot more like what we have today.

Wow. Okay, so let's fast forward to the present. And your epilogue opens in May of 2022 with this huge fence being erected around the Supreme Court building after Dobbs leaks and sparks protests over the overturning of Roe. Chief Justice Roberts obviously terribly offended this leak, calls it a singular and egregious breach of trust. And your reaction as a historian is that actually in the 19th century, the justices were totally. used to leaks. Nothing about that Dobbs incident would have struck them as particularly singular or egregious. So talk about what leaks looked like back then. Yeah, almost everybody was on the court leaked to somebody at some time. The justices were friends, were quite good friends with many congressmen. One great example of this is Joseph Story and Daniel Webster, who worked together all the time. Webster actually relied on story to write some of the legislation that he put in Congress. But yeah, so Webster was aware. This is well story is on the Supreme Court, to be clear. The well story is on the court, yes. Yeah. So Webster would be one person that would hear of what was

going on with story, for example. There were lawyers who tried cases in front of the court on a regular basis who would catch wind of what went on in conference because somebody was unhappy with what was going on. There were many leaks around the Dred Scott decision. We sometimes, historians sometimes think about that decision as being unique, but it wasn't. Almost everybody on the court leaked during the Dred Scott moment. And this continued again in the Civil War and after. To quote John Roberts again, just a couple of months after that Dobbs leak and Roberts' response, he says that the Constitution needs, quote, somebody to say what the law is and also sort of cautions, threatens.

I'm not quite sure what it is, but says that if the court didn't do it, quote, I'm not sure who would take up the mantle. And the book is like, it feels like a corrective slash response to that, as again is the wonderful book by Nico and Daphna that we've already mentioned. So who did take up the mantle in the 19th century and were we to respond to a correct understanding of the role of the court that reflects more this kind of complex interplay between courts and politics and democratic processes. Sort of what would that look like if we were to try to recover at least some aspects of it today?

Well, one thing that we would have to be comfortable with is a little bit of constitutional uncertainty. I think people in the 19th century were not obsessed with the idea that we know the final answer to constitutional meaning at every moment, that it changed over time and that people had different theories for how it might work. So that's one key part. A second key part is that the people at the time would have this constitutional conversation. So I think we've lost this as a society where we talk all the time about constitutionalism. That's what would have happened in the 19th century. And we don't do that in the same way today. I can't tell you many people will say to me, like, I don't know anything about the Constitution. I'm not a lawyer. But that would have been crazy to people in the 19th century who thought that the Constitution was their responsibility. So I don't know anything about the Constitution. I'm not a lawyer. So I don't know. I don't know anything. I'm not. I'm not. I I'm not going to suggest that we should just throw out judicial authority because the justices did participate in these conversations. And we are a very different society now from the 19th century. But I do think we could learn something from these folks in that the justices were far more responsive and responsible to the people in the 19th century. They faced their critics. They spent time with other politicians and average Americans.

and we're a very different society today in that justices would be forced to talk to people that they, you know, don't look like and wouldn't necessarily agree with, which was not always the case in the 19th century. Right. I want to quote again from the latter bit of the book because I thought this was really resonated and was very thought provoking, which is, so you write that today's justice is, quote, consistently insist they operate above, outside of, and beyond politics, in turn operating above outside of and beyond the people. And so we just say a little bit more about that, like how this claim to be above politics actually turns into or maybe is inextricably linked to in ways that I don't think anybody's articulated in quite the way you are. A claim to basically be above the people and that these kind of claims to an idealized conception of an apolitical court inadvertently making common cause with a wildly judicial supremacist account. Yes, I think, you know, I think this is sort of the message that Chief Justice. Roberts gives us on a regular basis, which is, you know, the people can't be trusted to make any decisions for themselves. This is really the purview of the court. And certainly the epilogue tries to point to this, but there could have been, you know, maybe 100 quotations from Chief Justice Roberts to

this effect. The idea that the justices have to be separated from the people to have legitimacy is just wrong. That is the opposite of the way things worked in the 19th century. And I think it doesn't mean that we can go back necessarily to that model, but it does mean there are other possibilities besides the idea that the court is in a building that nobody can access and nobody can talk to the justices. And the justices are insisting that they have to be separate from all people and politics in order to do the right thing in terms of our rights. This would have been totally crazy to people in the 19th century. And the founders who would have thought this is, this is totally outside what judges should be doing.

in a society where the people rule. I'm reminded of that wonderful Jody Cantor article from a few weeks ago about John Roberts, like having some maybe uncomfortable social interactions with his neighbors on this island off of Maine. And like a lot of people were shocked that he might have to, you know, answer for some of his decisions on vacation. And what you're saying is they've always had to answer. Like the kind of present understanding is the anomaly, right?

Like what Roberts has to do on vacation, like that's been the norm for our history. And I think that it's just so important to recover that. Like maybe I'll ask one more question, which is the idea that embracing a vision of the judicial role that does not stand so entirely outside of the worlds of politics and society and governance does not, if I read you accurately, necessarily mean that the justices are not independent when they decide cases. It's just that maybe we need to question or probe our conception of judicial independence. Can you say a little bit about how the vision that you offer might be consistent with some basic rule of law principles like judges, you know, should decide the cases before them based in at least large part, if not entirely on the merits of the arguments and not based on other factors?

This is a really good question and I think it's important to understanding the 19th century that the idea of independence was not that you were independent of politics. It was that you were independent of someone controlling your decisions. So being responsive to the people meant that you had to justify your opinions. You had to justify your decisions. But it didn't mean that you just reflected what the people said. The people were complicated in the 19th century. They didn't all say the same thing. It also meant a willingness to engage with the people and defend your decisions and talk about your decisions,

a little bit more transparency compared with the way that we operate today. So being independent is really about having the ability to decide and the confidence that you as a statesman or stateswoman would have the opportunity to say something that matters to society and matters to constitutional meaning. This is not the same thing as like I'm going to be a political independent or not have any political views, which, you know, it's like really not a thing. Yeah. It's just an incredibly important and eye-opening book. I want to end maybe just with another. quote from near the end of the book, and that is, quote, the Supreme Court's seclusion is not based in a long history and tradition, nice reappropriation of some of their favorite phrases. It is a modern creation. For a century, justices had a relationship to politics and the people that looked very different

from the mythic Marbury story during a time when the nation was at its most fragile and Americans were even more divided. The future can look different too. Rachel, you have given us a lot to think about. Really encourage our listeners and viewers to pick up a copy of the political Supreme Court. Thank you so much for taking the time to talk to me today. Thank you. So thanks again to Rachel for joining.

That conversation certainly put things in perspective. And now for our favorite things. So, Melissa, because you recommended Rainbow Rao, I read Attachments. I really liked it. Did you? I haven't read that one. Will I love it? I liked it.

Okay. I don't know if you'll love it, but I recommend it. I also read Lisa Claypass's new book, Queen of Lombard Street. Loved that. also the chicks bringing out James Telerico at their concert and the remarks that he made, I don't know why, but they, like, I teared up and I got all the feels from them because he says, they are the best of Texas. Like, I am proud you are Texans.

And it was just exactly like such a moment given all they endured, right, after, you know, expressing their opposition to Bush. So, anyways, check it out if you haven't. long ago and honestly, like, that was sort of the first glimmers of how misogynistic and crazy, like, this party was going to become. Yeah. I mean, do you remember that? So for those of you who are too young to remember, the Dixie Chicks basically criticized George W. Bush and his presidency, and people lost their ever-loving minds and said that they weren't real Texans and because they said he wasn't a real Texan and all kinds of shenanigans ensues. They issued a fantastic song Not Ready to Make Nice,

which was basically, Fuck y'all. We'll say what we want to say. And like totally stood ten toes down on their dissent, because dissent is patriotic. Imagine that. And, you know, and now we have this.

I mean, it just seems quaint, given the level of fuckery we have now that, you know, this was actually a controversy. This wouldn't even like break wind at this point. Yeah. But again, do check out James Taurrico's remarks. Definitely worth it.

Another favorite thing, Pablo Torre on Vivek Ramoswamy on Mr. K. Shaw's show, all in with Chris Hayes. Absolutely loved it. He just dish on what a douchevieve was in college. So, you know, again, everyone makes mistakes, right? But when you are funding an ad about the woman who stayed married to her daughter's rapist, right? Like, you get all your dirty laundry aired and we all get to make fun of you, right, for all time. It, like, that's just a part of the deal. Another, Lily Allen celebrating the one-year anniversary of West End Girl with a sex toy launch. Truly amazing. Icon level shit. I aspire to do something that iconic. It was just incredible. You get the email, right? And it's like, oh, check out like this West End Girl collection, right?

And you think it's going to be clothes or something? No, no, no, no. It's sex toys. It's just everything. And it comes to you in a Duane Reed bag with the handle tied. So one last favorite thing, and this is a spoiler for you can see everything. So if you haven't seen it and don't – or sorry, have you seen it, Melissa? I'm seeing it tonight.

Okay. Earmoss then. Irmoss. Amanda Safreed in the movie, like, I want to start that Oscar campaign. So fucking incredible. And I can't wait to talk with you about it, Melissa. Oh, okay. All right. I heard you.

And like, it's fine. It wasn't a huge spoiler. I knew that she was. You already knew that. My students have already told me that I need to see this, so I'm going to do that. I just want to say a couple of things. I'm so glad that you are enjoying the Rainbow Rowell. Again, I think her adult fiction is absolutely fantastic. I'm putting attachments on my list. I'm almost done with the correspondent. It's been a slow reading week for me because I've had a bunch of other stuff to do. But for those of you who recommended the correspondent, chef's kiss, love it. I'm going to say happy anniversary to my husband, the Hubs, who stays a husband, not a

husband, because he's great. And let's be honest, I'm kind of a lot, a lot of main character energy. He tolerates me, but he loves me, and I love him. So happy anniversary to him. I was at Fordham Law School yesterday because Justice Sotomayor made an appearance. I want to thank Dean of Fordham Law, my former classmate, Joe Landau, for inviting. me and allowing me to participate and be part of their community. They were lovely.

We love Fordham Law School. We did the Levine lecture there a couple of years ago, and they were just so fantastic. I want to just shout out a couple of the stricties in the wild that I met at Fordham. There were a number in the room. So shout out to Cecilia and Christina, who came up and said hi. And then there were two young women who came up and said hi and said they were fans of the show. One of them was wearing a very avant-garde jacket that I was just. fan-girling. I was so distracted by how much I liked her jacket that I forgot to ask her name. So

apologies to those two. I was stunned by your fashion forwardness. And it was great to meet you all. I am actually loving this season of The Diplomat. And I mean, I've been binging it. I've actually stopped going so fast with it because I want it to last because it's really good. Alison Janney is absolutely fantastic. Bradley Whitford is great. Carrie Russell, fantastic. You know, I'm obsessed with Rufus Sewell and absolutely would. And that is all I have to say about that. But if you are watching it, it's such an interesting commentary on things that are happening now and just, what would you do if faced with unbridled executive power? What would you do?

Well, speaking of what would you do, something you should do is CrookedCon. So CrookedCon is just over two weeks away. Join us in Washington, D.C., November 5th through 7th, as we reflect on the midterm results and look ahead to what's next in 2028. And now you have even more reasons to come. We've just added some big names to the Crooked Con lineup. Guess who's going to be there? It's not just me, Leah and Kate. It's also going to be our good friend, J.B. Pritzker, Senator Chris Murphy, who's going to be our good friend. Representative Ilan Omar, who will have a lot to dish about. Plus, Representative Sarah Jacobs is going to be talking on our AI. panel. And there are so many more. It's going to be absolutely fantastic. So get yourself a front row seat to the discussions that are going to shape our future and the future of the pro-democracy movement.

So go to crookedcon.com to get your tickets if you haven't already. See you there. Struck scrutiny is a Cricket Media production. Our show is produced by Melody Rowl and Farah Safari. Music is by Eddie Cooper. Our team includes Alona McCovsky, Matt DeGroat, Ben Hethcote, Adam Lippard, and Eric Schute. production staff is proudly unionized with the Writers Guild of America East. Hey everyone, my name is Elijah Cohn, and I've been a producer here at Crooked Media for a decade. I love making our shows with the smart, creative people who work here and hearing from all of you who listen every week. But the thing that I'm proudest of is that video we made of Yvette Ramoswamy grunting while hitting baseballs. No, wait, sorry. The thing I'm proudest of is the work we do through Votesave America.

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