Strict Scrutiny - The Supreme Court Allows Third-Country Deportations to Continue

Episode Date: October 5, 2026

This Monday officially kicks off a new Supreme Court term, and the cases and controversies are already heating up. Leah, Kate, and Melissa dig into the Court’s decision to allow the administration to resume “third-country removals,” as well as its decision to take up a new case challenging the administration’s policy of indefinitely detaining immigrants who cross the border illegally. Then, it’s time for the first argument previews of the term! Cases this week include one that could have significant implications for holding oil and gas companies accountable for climate change, and a challenge involving the constitutionality of federal laws affecting veterans’ benefits. Finally, Kate and Leah talk with Kelly Lytle Hernández, professor of history at UCLA, about her new book, Racist by Design: Two Centuries of U.S. Immigration Control.Favorite Things:  Leah: The Love Hypothesis | The Public Shaming of John Roberts  Kate: Should I Stay or Should I Go?  Melissa: ‘A Different World’ Renewed for Season 2 | Swan Song by Earl Spencer  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 scrutiny is brought to you by Americans United for separation of church and state. It's fall, y'all, which means it's back to school season. And this year, because of the courts, 5 million children across Texas have fallen back to the days of religious proselytization in schools. Yes, 5 million children across Texas are going to be greeted by the 10 commandments in their classrooms. Texas politicians passed a law requiring the 10 commandments 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. We've seen how public pressure works, and the public needs to be clued in about this case.

You can hear one of the plaintiffs here. 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 is a human cost of Christian national policies, like these Ten Commandments laws and the decisions the Supreme Court hands down. Visit AU.org 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 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 next. Hello, and welcome back to strict scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts, and once again, we are here in full force. I'm Leah Littman. I'm Kate Shaw.

And I'm Melissa Murray. And guess what, folks, we have a banger of a show for you because our favorite justices. Okay, let me take that again. Our justices are back on the bench. They're not my justices, Melissa. Nope, they're not. Exactly. I'd redo that once more.

Take three. Those justices. Take three. So those justices are back on their hustle, which is to say that they are back on the bench hearing cases because this episode drops on the first Monday of October. So this is going to be a full episode. We're going to do argument previews. We're going to get you up to speed on everything that the court is doing. But we will also bring you breaking news. And of course, we're going to have a fantastic interview. And then we will end with a rundown of our favorite things. So shall we start with the breaking news? Let's do it.

All right. So folks, in the week leading up to the beginning of another Supreme Court term, the Republican appointees on this court decided to remind us of exactly who they are. So do you all remember all of the goodwill the court amassed, not with us, obviously, but with other people? They amassed all of this goodwill last year by doing the absolute bare minimum to prevent Donald Trump from taking over federal elections using the post office, at least for now, per Brett Kavanaugh. Or do you remember at the end of last term when they amassed some goodwill by ruling narrowly? against the president and affirming that maybe the Constitution means what it says about birthright citizenship, TBD. And then they also amass some goodwill by preventing the president from wrecking the economy in the tariff and Lisa Cook Fed cases. Well, all of that happened.

All of that goodwill was amassed. Lots of people were lauding this court for doing the absolute least. And then this conservative supermajority decided to do something in same. with all of that goodwill. They decided that they were going to, wait for it, facilitate torture, really and truly. Yes. So for your consideration, there was last Wednesday night, absolutely horrifying botched execution of Krista Pike. Pike was sentenced to death in Tennessee for participating in the murder of a classmate in 1995. She had recently filed a motion to reopen the denial of her habeas petition, arguing that the state had changed its position on the relevance of some mitigation. evidence she had presented. Early on Wednesday, the Sixth Circuit granted a temporary stay of execution. Pike had wanted to introduce evidence of the extensive physical and sexual abuse. She suffered as a child, which the state now doesn't really dispute happened, and the Sixth Circuit agreed to a brief stay to allow her to potentially air that claim. The state of Tennessee ran to the Supreme Court to ask it to lift the stay, and the court, in a six to three, totally unexplained

decision, lifted the stay, allowed Tennessee to expedite the execution and proceed, a decision that Justice Sotomayor joined by justices Kagan and Jackson called, quote, stunning. Okay, so what happened next after the Supreme Court's greenlight? Tennessee attempted to proceed with the execution using Pento Barbatol, which it had adopted as its lethal injection drug of choice after an investigation into its previous three-drug lethal injection protocol revealed absolutely horrifying procedural and testing failures. So the state adopted this new single drug protocol in 2025 in May 26, so just a few months ago. there was a failed execution because Tennessee officials could not locate an IV line, which seems like a pretty basic thing for a state trying to do lethal injection executions, but they failed to do it. And so they said, let us hurry up and do another one, right? That's the nature of their request. That's basically, like, there are real questions about the three drug protocol. They replace it with this one drug protocol. There's still questions about the one drug protocol. And then this request comes in. And the court's like nothing to see here. Let's continue. Full speed ahead.

So on Wednesday, Tennessee's planned execution of Krista Pike failed spectacularly in what appears to be yet another botched administration of the single drug protocol. According to witnesses, Pike was clearly in pain when the drug was being administered, and after two syringes of pentobarbital were injected, she remained awake and breathing. She was then transported to a hospital, and at the time of this recording on Friday afternoon, all we know about her condition is that she is reportedly allowed. but they have listed her as being in critical condition. According to Robin Mayer, who runs the Death Penalty Information Center, quote, this event is the worst we've seen, and unlike any other botched execution in the modern era, there is no precedent.

Imagine if you are a hospital worker and into the ER come someone the state tried and failed to execute. It's just, like, that is what is happening. And in their dissent, the Democratic appointees had warned about the, quote, grave consequences of an erroneous decision to allow the state to expedite the execution. And this is not the first time. The Supreme Court has been warned about the potential for an execution to go wrong, only for the execution to then go horribly wrong. This happened in Kenny Smith's case where Alabama, after failing to execute Smith by lethal injection, wanted to execute him by gassing him with nitrogen and use him as a guinea pig for their new protocol. The state said, promised he lose consciousness immediately and die shortly thereafter. The Supreme Court declined to block the execution and what happened. It took more than 30 minutes after the execution started for Mr. Smith to be declared dead,

during which time he was thrashing, violently jerking, and heaving, and wretching. And that's not even the only other such example. So remember the execution that begins Judge David Tadall's book, Vision, which we discussed on the podcast when we had Judge Tatele on, it begins with the story of Indiana prisoner Daniel Lewis Lee, who the federal government was rushing to execute, actually also using Pento Barbatol. And there had been a stay entered by the D.C. Circuit and yet another unreasoned at this point five to four rather than six to three, but unreasoned Supreme Court order lifted the stay of execution and allowed this execution to go forward. It was like, Tatele both in the book, and I remember in the conversation, was still just like so stunned at what the Supreme Court had done. and it was horrifying and scandalous six years ago when this happened, and we just cannot allow ourselves to get desensitized to it. And that is not, as Melissa alluded to, up top, all of the horror the court unleashed just last week on the shadow docket slash torture docket.

Because last week, for the third time, the court stepped in to permit the administration to resume its so-called third country removals. This recall is the practice of sending individuals with orders of deportation to countries with which they have no relationship, they may be and have been subject to inhumane treatment, including torture. This case has been bouncing around between a Massachusetts District Court, the First Circuit, and the Supreme Court for well over a year. In this most recent round of litigation, the district court again found that the plaintiffs, most of whom are from countries in Central or South America, but who have been scheduled to be rendered to countries far from South and Central America, they've been scheduled to go to places like South Sudan and

Deswitini. The district court held that they were entitled to hearings due process in which they could make claims that they feared persecution or torture in these third countries. The Massachusetts District Court described the case in the following way, quote, this case is about whether the government may, without notice, deport a person to the wrong country or a country where he's likely to be persecuted or tortured, thereby depriving that person of the opportunity to seek protections to which he would be indisputably entitled. DHS has adopted a policy. whereby it may take people and drop them off in parts unknown. And as long as the department doesn't already know that there's someone standing there waiting to shoot, that's fine.

It's not fine, nor is it legal, end quote. The fact that a lower court thinks this is neither fine nor legal should tell you how the Supreme Court ruled here. The folks who go to work in a building that has the phrase equal justice under law inscribed on its pediment, decided to stay the lower court's order allowing the administration to resume, third country, deportations. And the fears these plaintiffs raise are not speculative. The New York Times has reported beatings and denials of medical care while in transit and abuse upon arrival in Equatorial Guinea. Sarah Stillman at the New Yorker has reported deprivation of food and isolation in the forests of Ghana in prisons of Eswetini. There are also credible allegations that people sent to Liberia,

where the administration has negotiated an agreement to send more than 1,000 people are at risk of being sold into slavery and trafficked. So again, to make it all. appallingly clear, the Supreme Court of these United States said, sure, go ahead, resume third country deportations in the absence of basic due process protections. And they did this in the face of extensive reporting about what this policy actually involves. And let's link these two shadow docket orders. Here, the court is saying, go ahead, administration, go ahead and implement a policy that allegedly results in torture while we Supreme Court deigned to figure out whether it does, in fact, illegally enable torture. And in Krista Pike's case, it was go ahead and execute this

person or try to on an expedite basis, which we know carries a risk of torture before a court even looks into the legality of her sentence. Just absolutely goblin goolish. There is one tiny glimmer of a silver lining here, perhaps even a nod to public pressure on the part of the court, and maybe even the possibility that law may still matter, because this court decided to grant certiorari on the DVD case. That's the third party removal case. And they will hear this appeal on the merits docket on an expedited basis. Now, I just want to say, I'm not turning into Kate. I don't think we should go slapping them on the back. We're deciding to put this case on the semi-fast track for decision because they did some other stuff with this grant of certiorari. So they added a really weird question to the order

granting cert. So in that order, eliminating all semblance of law from this. entire thing. I should say. The law was there and then they're like, let's take it out. Just wipe it right away. Let's see it out. And then you read the order and it disappears. Never mind. You were like, so close. So close. Anyway, so in the order on the shadow docket, granting the government's stay request, but also granting Sorcharari, the court tells the parties that in addition to addressing the questions of jurisdiction, whether the district court has the authority to issue class-wide relief or to issue an APA vacature, as well as the substantive legality of the removal policy, the party should also brief, quote, such other questions that the government

determines are appropriate for the proper disposition of the case. So basically, John Sauer is going to dictate how this goes. He is the 10th Justice Melissa, and he gets to write the questions. There is court expansion. We've done it. Hot court reform suburb happens. Not quite what we meant. Not what we meant. Oh, anyway, so close yet again. I mean. Expand the court some more. Right. With different people. I mean, this is just to be clear a bizarre formulation. So such other questions that the government determines are appropriate. Like it's not a sentence of formulation that I can recall seeing. And honestly, more importantly, not one that Steve Lodick was literally like the Yoda of Scotus knowledge, remember seeing. So I don't think we have seen this before. And I just want to say it's like the court not only maybe quiet quitting the law, but also seating to the Trump administration, the authority to write the questions presented for review. I mean, I think that Sauer should maybe also, since he is now, just not symbolically, but actually, a justice of the Supreme Court should just submit draft opinions. They can sign off on them and say everybody a whole lot of work.

Don't even sign them, just like a stamp. Yeah. It's just like, and it also just to state the obvious, there are two sides to this case and only one of them is being asked to formulate this question. And again, in a completely unorthodox and possibly unprecedented way. So, Nice job with that impartial justice, guys. Yeah. So Yoda, the Supreme Court, Steve Vladick, also pointed out that this, the Supreme Court's order, was issued about 11 minutes after the federal government had filed its reply brief. So truly the product of genuine deliberation and careful thought. It's definitely not the case. Wait, wait, wait, wait, wait. Wait. Wait. Wait. Wait. I want to say also like 11. It was like a few minutes. Yeah. It was like, but I think it might have been less than 15. Yeah. I think. So since we are. are invoking Yoda of the Supreme Court, Steve Latic, just wanted to note that he has announced that his new book, his forthcoming book, out in May, the court we need, is actually available for pre-order. So be sure to check that out. Spoiler alert, it's not this court. Right. Yeah. Indeed. And last week they made that very clear. You know, last week I also called this Shadow Docket, the shit show docket. And again, they just keep insisting on proving us right. Like, no matter what we say, it's never harsh enough. I know. I know. But we will continue.

Nevertheless, she persisted. We shall. And silver lining, maybe it'll just completely bump the pre-orders of Vlodig's book. And, you know, that's important. Ordered that book, guys. Strict scrutiny is brought to you by Cozy Earth. Life is stressful. Don't I know it?

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insurance options may now be available nationwide, with an average co-pay for eligible members of just $23 per session. Okay, it's fall, but don't fall into a bad place, especially because October has World Mental Health Day. It's October 10th, but your stress isn't going to wait to kick in until that day. neither is the burnout. Are all the other structural systemic problems you probably are trying to fix with your individual choices? Yes, I see you. And yes, it's not possible. Mental Health has to be part of regular life. So don't wait until World Mental Health Day to take care of your mental health. Therapy, it's not just for the big things, like the big stresses, the big life choices, the big crises, like, you know, the Supreme Court. It's also a place to talk through the smaller things to establish a maintenance routine. to deal with the little, everyday stressors, that work situation, that might be taking up way too much of your time and energy, the relationship dynamic that's just, I don't know, not feeling great, or just a sense that something feels off and isn't clicking.

Think about all of the good that could have been done had just a few men, thinking of five men, had some real quality regular therapy. You're already in a way better place than they are, so treat yourself, do what they don't have enough of a, clue to take advantage of some therapy and try out that therapy with BetterHelp. If you've been waiting to start therapy, BetterHelp works with more than 125 health plan networks and eligible members have an average copay of just $23 per session with insurance. Don't have insurance or don't live in the United States. You can still get 10% off your first month. Visit betterhelp.com slash

strict to explore your payment options. That's betterh-elp.com slash strict. So remember when we said that October term, 2026, was looking a little light on the docket sheet? Well, now we have third country removals on the docket. And the court has also announced that it will take up another important immigration case. This one regarding the administration's novel policy of indefinitely detaining individuals who cross the border illegally, including years or decades ago, rather than releasing those individuals on bond. And notably, all of this comes in the same week that yet another person died while in ICE custody. So that makes more than 50 people who have died in ICE custody since the Trump administration took office.

All right. Well, so that was a horrifying opening to this episode. Let's move on to different subjects, not lighter or happier particularly. But there's like a little bit more kind of like embedded entertainment in at least the next topic. And that is Jack Smith's testimony last week before the Senate judiciary. committee. The thing that made, sorry? I said, go hocks. Right. So as what Leah's living to, obviously, the thing that made the most news was the senator from Missouri, we don't spend that much time mocking on this podcast. But maybe now we will. We haven't historically. Now we should. But Eric Schmidt making a strong showing. In his obviously, unless you've been hiding under a rock, you know, this kind of catastrophic misfire. in his attempt to set a perjury trap for Jack Smith, which evidently involved confusing the NBA team, the Atlanta Hawks with the college women's basketball team, Iowa Hawkeyes, which then included Caitlin Clark, who's now obviously in the WNBA. Anyway, that was actually delightful.

I mean, it's always delightful. Strike again. Totally. Again, I just want to say this was the most amazing television I think I've watched in a long time, literally watching Eric Schmidt in real time, reveal him. himself to be the Elmer Fudd of Yosemite Sams. Like, just absolutely fantastic. Like, Tommy Tuberville is sitting somewhere being like, yes, this is the way. Like, he's been looking for someone to get ragged on and here it is. And this whole episode was so delightful in its complete and utter stupidity. I mean, literally, this was like confusing Genghis Khan and Shaka Khan. Like, this is so fucking crazy. And the best, best, best part was Katie Britt's face. Because I still haven't forgiven Katie Britt for that state of the union rejoinder. And when they zoomed in on her as she was in real time realizing that Eric Schmidt was a complete Yahoo, I was like, I love this. She just realized that Schmidt Schmidt the bed. She really just realized it. It was amazing. And then I looked behind.

Schmidt, and I saw the mediocre staffers who in that moment were also realizing that they had fucked up spectacularly. And it was just like, chef's kiss injected into my veins. Watched it over and over again. Who knew we needed DEI to differentiate the Atlanta Hawks from the Iowa Hawkeyes? Learn something new every day. That was absolutely amazing moment. But there were a couple of other moments that might have gotten lost in all of the dunking on Schmidt. So let's take a listen to at least some of the those. I stand by my decisions as special counsel, including my decision to bring charges against President Trump. Our investigation developed proof beyond a reasonable doubt that President Trump engaged in serious crimes against our nation. The charges against President Trump were the result of the evidence. Grand juries and two separate districts reached this conclusion based on his actions, as alleged in the indictments they returned. Rather than accept his defeat in the 2020 presidential election, President Trump engaged in a criminal scheme to overturn the results

and prevent the lawful transfer of power. After leaving office in January of 2021, President Trump illegally kept classified documents at his Mara Lago Social Club and repeatedly tried to obstruct justice to conceal his continued retention of those documents. Highly sensitive national security information was held in a bathroom and a ballroom where events and gatherings took place. I just wanted to play that even though it's a little bit of a long clip and it's not as entertaining as Eric Schmidt fucking up. Because I just, the effort that is underway to fundamentally rewrite that history is so powerful. And I just want everyone to remember every single minute of every day.

that this prosecutor thought Trump committed crimes. Trump, this current president, committed crimes beyond a reasonable doubt. Grand juries agreed, we never got to see the full case or have juries decide. And the reason why is what this podcast is about week in and week out is because of the Supreme Court, which came in and stopped it. And I do admire Jack Smith just telling it straight to the faces of these people who are active participants in the kind of rewriting and whitewashing. And, you know, he says at one point later, we're not going to be. play this clip now, but that one thing you would have done differently is to figure out how to talk to the public more because he was trained as a prosecutor to just do your talking in court,

but that if you don't do that, like talking more publicly, people with loud megaphones can drown out the truth. And I wish that he had realized this earlier. But I'm glad that he's, you know, speaking as clearly as he is now. Well, listeners, this seems as good a time as any to remind you that we need to talk about Clarence Thomas. Because this isn't just about the Supreme Court. and the majority in Trump versus United States, which granted the president a broad get-out-of-jail-free card that would be immunity for his core constitutional actions as well as things in the outer perimeter of his core constitutional actions and on and on and on. This was also a case where our friend, Clarence Thomas, decided to put pen to paper to write a separate concurrence arguing that the

special counsel statute under which Jack Smith was appointed was unconstitutional. And as is typical of a Thomas concurrence, no one on the court signed on to this madness, but it did tee up that argument, and that was the argument that one Eileen Cannon, a federal district judge in Fort Pierce, Florida latched onto to dismiss the Mar-a-Lago documents case, which is all to say that the court really covered its bases in the Trump v. United States opinion. The majority opinion knocked out the January 6th prosecution. Thomas's concurrence knocked out the Mar-a-Lago. documents prosecution, and I will submit the majority's insistence that evidence of official acts can't be used to establish unofficial conduct would complicate the 34 convictions secured in the Manhattan

hush money case. So boom, boom, boom. Anyway, here's another clip from Jack Smith's opening statement, because this man may have been thwarted in putting people behind bars, but he definitely got his chance to drop bars. Take a listen. History teaches that the rule of law is rarely destroyed all at once. It's often weakened by attacks on the institutions and the public servants sworn to uphold it. Since January of 2025, we have witnessed precisely such an effort, including the vilification of the agents, prosecutors, and staff who worked on my team, simply because of their unwavering dedication to the rule of law. I myself have been threatened with jail by the President of the United States. However, I remain confident that the rule of law will endure because so many continue

to uphold it faithfully each day. Throughout our legal system, public servants have remained faithful to their oaths despite extraordinary pressure to do otherwise. Their example demonstrates that, while fear may be contagious, courage is as well. All right. So, So that was the opening statement. That's where the hearing started, and it definitely got wilder from there. One of the major issues at the hearing was Jack Smith's decision as special counsel to subpoena phone companies for the telephone records of members of Congress. The whole discussion prompted the gentleman from Cancun, Raphael Ted Cruz, to thunder into an open mic. Is it a crime to be Republican? Maybe. No. No. But maybe. Maybe it should be a crime to head off to a Mexican resort while your constituents braided the loss of heat and power during a blackout. And also you leave your dog behind.

Well, apparently the dog was left with a dog walker, so he had a sitter, technically. I'm not mollified. Justice for Snowball. Wait, is it Snowball or snowflake? Snowflake. Of course, it's snowflake. That was back when we first started. We covered the Justice for Snowflake movement.

Anyway, Raphael wasn't the only one pissed about the subpoena. The gentlewoman from Tennessee, Marsha Blackburn, Kate, I believe you're familiar with her, also took the subpoena personally. so personally, in fact, that she has decided to bring a lawsuit against Jack Smith. So she's suing Jack Smith and her lawsuit notes that Jack Smith's appointment as special counsel was, quote-unquote, lawless again. Just a reminder that we have Clarence Thomas to thank for this line of argument. But the crux of her argument really seems to be focused on Article I's speech and debate clause. She argues that it bars Smith from subpoenaing those phone companies for data about lawmakers' communications. As she argues the clause protects legislative materials, including apparently toll records of phone calls

from disclosure. Blackburn was among the many lawmakers who interacted with Donald Trump and or his associates in the period leading up to and after January 6, 2021. And this lawsuit makes many claims, including characterizing Smith's subpoena request as part of a conspiracy to deprive Blackburn of her constitutional rights. It also seeks a number of legal remedies. But, But again, for our purposes, the most important are that Blackburn wants the district court to declare that Jack Smith was unlawfully named special counsel and that the subpoena request violates the speech and debate clause among other constitutional provisions. Also, she seeks $1 in nominal damages because this is about principle. Principle all the way down. We also wanted to acknowledge, of course, that this last week there was a ton of attention reporting deservedly so about the absolute.

horrifying allegations out of Cornell. Cornell student, former Cornell student, filed a lawsuit, alleging she was assaulted by several of her fellow classmates and the university basically did not do much in response. There is actually some limit sealing capacity for how much we are able to discuss in any particular episode. And we just wanted to both acknowledge that this is happening and also, say, like, we are not going to spend this particular episode discussing it because I personally am at my max. Like, when I opened the, you know, front page of the New York Times, there was a

moment where online the front page was like five stories about the Cornell allegations, stories about the botched execution of Krista Pike, and just a specter of like that much horrific violence against women and misogyny. I just needed to X out. So we are choosing to go to Supreme Court previews instead, so it's not like we are picking rainbows and unicorns. But anyways, that's my, yeah. Indeed. Strict scrutiny is brought to you by the Wild Alaskan Company. I've been trying to be more mindful about how I treat my body in every way, and that means

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And seeing the pictures helps me relive the stories behind those moments. Some of my favorite photos on display are photos from our time in California. When we were both on sabbatical and obviously traveled with our pup Stevie, There's one of me holding Stevie with a sunset on the beach in the background and also the classic family selfie with a sunset in the background. I just love those photos. Not going to lie, I also love our strict scrutiny team photos from last year's CricketCon. We all got together after a super fun, exciting weekend and show, and somehow I ended up in the group photo lying on my side on the floor like in some sort of weird 90s band photo. Anyway, seeing that photo makes me feel the energy and warmth and fun of that time.

Orr frames helps me relive those moments and they can help you with their free unlimited. storage. You can add as many photos and videos as you want. And for gifting, you can preload photos before they ship and keep adding them from anywhere anytime. What will be on your aura? Named number one by wirecutter, you can save now by visitingoraFrames.com. For a limited time, listeners can get $20 off select frames plus free shipping with code strict. That's a URAFrams.com. Promocode strict. Support the show by mentioning us at checkout. Terms and conditions apply. The time has come to turn to the beginning of the Supreme Court term. I can't really wish people like a happy First Monday because, I don't know, we don't celebrate that.

I don't know who celebrates it. To all who celebrate. By statute for everyone, the first Monday in October is the start of the Supreme Court term. And we have arrived at that inauspicious date. And so here we are. Let's talk about this week's arguments. So Suncor Energy versus Commissioners of Boulder County. This is the first case that will be argued this term, and it's a big one.

It's an environmental case that will have significant implications for holding oil and gas companies responsible for some of the effects of climate change, or not holding them responsible, depending on what the Supreme Court does. The background is that in 2018, Boulder County, Colorado filed a lawsuit alleging that Suncor and ExxonMobil engaged in conduct that contributed to global climate change, which is affecting Boulder and its residents in very concrete and tangible ways. There's less snow, which is a key source of municipal water, so the county had to overhaul its water infrastructure. They're dealing with more wildfires and floods. Climate change is impacting public roads and other infrastructure, human health, and more. Framing this in familiar legal terms, the county asserted several state common law claims, including nuisance, civil conspiracy. In many ways, the case mirrors, I think it's modeled on the tobacco litigation of the 1990s, which identified a ton of harms for which the tobacco industry was responsible, and it obtained huge settlements and change in. the industry. The case has been bouncing around between state and federal courts for the last eight years. In the most recent decision, the Colorado Supreme Court allowed the case to proceed to trial. So of course, Big Oil Suncor went running to Daddy Scotis asking, really, begging the justices to please bail me out and make the big bad county stop trying to ask for unreasonable things like water and roads and clean air. Suncor's arguments focus on

preemption. This is whether the federal government's policy actually override or supersede extant state laws on the same topics. And Suncor is making two different preemption claims. The first seems to be a kind of free-floating supremacy clause preemption claim, but with a kind of global overlay. And so it proceeds like this. Problems like climate change, which are global in nature, require federal solutions. So state law cannot go there. This is where the federal government takes the field. The second claim is like the opposite of too big to fail. It's like too big to solve.

Can't even try. Perfect analogy. I bet half the people who are still on the court from Massachusetts versus EPA and who are in the dissent in Massachusetts versus EPA will be here talking about how there's got to be a federal solution for this one in Massachusetts versus EPA. They're like, there's no possible solution. It's global. And there will be no inconsistency, but whatever.

The second preemption claim is more specific, more surgical, I think. Suncor argues that the county's state law claims are preempted by the Federal Clean Air Act. So apparently it is good for something. That's great. There's also a jurisdictional argument here. Boulder County says that because this case hasn't even reached the merits review stage in state court, the oil companies haven't suffered any kind of Article III injury. and so the court should not wait in here at all.

That would be a winning argument if Boulder County was the president of the United States, but it's not going to be successful here, I fear, because this court has been very happy to wait into tons of issues at exactly this kind of very preliminary stage of litigation because they want to. And I don't know if they will be likely to take this off ramp because, again, big oil. I don't know. But anything could happen. It's wide open. Big oil is supreme. It's right there in the supremacy clause. Exactly.

And I do think there's, you know, a development last week maybe changed the math in terms of the likelihood of different outcomes. And that is that after months of calls that seem to fall on deaf ears, Justice Samuel Alito announced that he actually would not be participating in the case, which means that there are eight justices participating. and a tie would affirm the Colorado Supreme Court, which, as Melissa said, had ruled that the case could go to trial. So a tie would mean the case could move forward. So it's at least in theory possible the court could do that. As for why we got this piece of news, which is, to be clear, welcome. Well, he didn't tell us. So we don't know. But one likely explanation seems to be that he holds oil company stock. Not, I don't think Suncor or Exxon, but he does own others. And oil companies in general will surely be affected by what the court does in this case.

And Alito is one of the only justices who owns individual stocks outright. And that obviously was the source of many of the calls for recusal, which he maybe seems to have heated. Another possibility I have heard floated is the involvement in the litigation of Paul Singer, who once funded an Alaska fishing trip for Justice Alito. But again, all speculation because he has not told us. Ladies, do you have theories? Oh, I do. Let's hear. I do.

So this announcement, as you said, came a little late in the day because people have been calling for this for a while. I will just note that Justice Alito's recusal announcement came after the court had its long conference. The long conference happens on a Friday before the term starts, and this is where the justices discuss the backlog of cert petitions that have accumulated over the summer. It is also presumably the first time that the justices are all together since the prior term ended and they jet it off on their fantastico vacations. And so maybe this was an opportunity. where in the hurly-burly of the court's operations, Justice Alito may have gotten a little glimpse of where his colleagues might be on certain issues. And maybe he felt like, you know what, they don't need me. There are already five votes for big oil here. So why don't I throw these harpy libs a little ethical bone? My everything is awful take was kind of similar. Like maybe he thought there were five votes for Sunkor or that there are five votes to say the court doesn't have jurisdiction at this point. Either way, do not congratulate.

especially because even ostensibly in abiding by, you know, whatever the ethics rules are that might have required his recusal, he still refused to abide by the court's ethics guidance, which requires the justices or says the justices will explain while they are recusing. So it's guidance. Leah, it's right. Exactly. It's guiding. I also enjoyed while we were recording posted on the Wall Street Journal page the following opinion commentary piece. Justice Samuel Alito, colon, even originalists make mistakes. This is a preview slash excerpt from his forthcoming book in which he apparently describes himself as a, quote, working judicial originalist.

And just hear this line out, ladies. Quote, I envision an originalist judge driving down a highway. Along the way, he sees seven off ramps. It all makes sense now, right? Gas guzzling, originalism, and I want to ride it all that long. I need to meditate on it for a while, I guess. You're going my way, Paul Singer. That book sounds terrible.

I'm just going to say. I have to say I had forgotten until five, ten seconds ago that there was one coming out. Oh, my God. Are we going to, I think I might have to hate read it, guys. Well, we're sorry. We're sorry. We're reminded you. Yeah.

But, you know, silver lining here. Don't ever think public pressure doesn't matter. Vergonia occasionally still works. So does counting. If you are a more recent adopter of this podcast, just go back a couple seasons. You'll find the Vergonia. It emanates from House Alito. Or just Google Vergonia Alito and it will all become clear.

I don't even think you need to put Alito in there. Just Vergonia. Fair enough. Fair enough. Vergonia will probably take you there. Yep. Okay. So moving on to the other cases, the court will hear argue this week. Also on Monday, after Suncor, the court will hear arguments in Johnson versus United States Congress, a case about whether the Veterans Judicial Review Act stripped district courts of the jurisdiction to hear challenges to the constitutionality of federal laws that affect veterans' benefits.

The case involves Johnson a disabled veteran who was serving a sentence in a federal prison. A statute 38 U.S.C. 5313 provides that once a veteran has been incarcerated for a felony for more than 60 days, his disability payments are reduced to the amount payable for a 10% disability. Johnson argues that this scheme is unconstitutional, but the question here is actually about where he can bring that argument. Should he bring it to a federal district court or should he file it in an administrative process before the Board of Veterans Appeals with the possibility of eventually appealing that BVA decision to the federal circuit? Obviously, Johnson would prefer to bring his case in an Article III federal court in the first instance rather than to an administrative body which has no expertise in deciding constitutional questions. And side note, he's also arguing that by law, the administrative tribunal can't decide this constitutional question, although that is contested. The government argues that another statute, the Veterans Judicial Review Act, or VJRA, creates a comprehensive and exclusive scheme of administrative and judicial review that displaces district court jurisdiction over all questions of law that are necessary to a decision by the VA secretary that affects the provision of benefits by the secretary to veterans. The government says that this statute reroutes these questions to an administrative tribunal rather than directing them to a federal district court and it applies to constitutional challenges like this one that Johnson is bringing.

Johnson makes what I think is a very convincing argument that the statute doesn't expressly withdraw federal courts jurisdiction over constitutional questions, but only these questions about actual benefit eligibility. He relies on a 1974 case that allowed district courts to adjudicate constitutional challenges to a benefit statute. The government says this federal statute that postdates that case. The VJRA overrides that opinion. So that's a big question in the case. There are also questions about the so-called Veterans Canon in statutory interpretation and the significance of a 2012 case called Elgin, which held that Congress making a different specialized review scheme barred district courts

from hearing claims that could have been brought through that scheme. There's also a ton of amici on Johnson's side, sort of broad ideological coalition, some of them making very big arguments with, you know, potentially significant implications for the administrative state. But I think there are narrower grounds for the court to resolve this case. And so I think it's unlikely that the court is going to take those amici's invitation. I will say, I think this case lies at the sweet spot of Neil Gorsuch's antipathy for the administrative state and his love of statutory interpretation canon. So I expect lots of activity from our boy, Neil. And the day after, Anderson versus Intel will be argued on two.

So this is a case about fan favorite ERISA, the Employee Retirement Income Security Act. ERISA requires plan fiduciaries to exercise a prudent man standard of care. The question here is if you're going to sue alleging there has been an underperformance of a fund, alleging that an ERISA fiduciary failed to use the requisite care, skill, prudence, or diligence under the circumstances, do you also need to allege some meaningful benchmark for evaluating the underperformance? I think the benchmark is Pete Hexa. Oh gosh. Or Christy Noam now, since they're all throwing her under the bus. But it's a prudent man. And she's a woman.

Yeah. Right. So can't use her. Yeah, good point. This was a knit or is a prudent man Cash Patel? Is he higher or lower? Does this bar take cash? Exactly.

Exactly. Like which wants higher or lower? Listeners, debate amongst yourselves. But Anderson versus Intel was initially two cases that have since been consolidated. A couple of former Intel employees brought the case after Partonel. participating in Intel's 401k and retirement plans. Okay. And the final case for the week is Air Force versus Prutahi Guahan, which is a case that will be argued on Wednesday and concerns the military's detonation of toxic explosives on one of Guam's most pristine beaches.

In particular, whether the military can basically bomb said pristine beaches without issuing an environmental impact statement. I like how these like anti-environmental protection cases are being argued right around climate week. it's like the court tried this and knew it. They are trolls. Here's how we're going to celebrate. Exactly. Trolling decisions. I mean, the procedure at issue here is literally called open burn and detonation.

That's what the Air Force, like, you know, concedes it does. The question is just what sort of legal process should govern. Bill, baby, Bill. Bill, baby burns. That's a problem. Right. Exactly. So they're doing this on a beach within the Anderson Air Force Base in Guam.

And this beach, to be clear, is above a major aquifer that supplies most of the island's drinking water. The area borders marine ecosystems. There are endangered species habitats nearby, including sea turtles. Because, of course, if they're going to open, burn, and detonate, they want to do it where there are sea turtles very close by. So a local environmental advocacy group that represents nearby landowners and residents suit the Air Force, arguing that the military violated the National Environmental Policy Act, NEPA, by going forward with this open burn. and detonate plan without completing the required environmental impact statement and providing for community participation in its decision-making. The Air Force argues that another statute, the Resource Conservation and Recovery Act, which is a statute about permit programs for hazardous

waste treatment facilities, including those in federal territories, implicitly replaced the Air Force's duty to comply with NEPA. So very, very convenient to have this implied replacement of a whole other statute, but no actual explicit commitment of this. The federal government's position here seems to be that because dangerous, hazardous materials are involved, the federal government is allowed to conduct less environmental review and community engagement than if it were building a road. It's like from too big to fail to too big to solve to two hazardous to prepare an environmental impact statement. It's kind of wild. It's also a textual. There's no such exception in the text of NEPA or RCRA. So the case is about a specific action and legal review scheme, but, but also underscores the impossible position. Territories are in vis-vis the federal government. There are over 3 million residents of U.S. territories, and people in Guam are U.S. citizens, but they can't engage in normal democratic feedback mechanisms like voting for president or having representation in Congress. So these community involvement requirements are a major way residents of the territories can register their views on policies that affect them.

And all of this, the challengers say, and there's a really good amicus brief by the Right to Democracy Project, that made many of these arguments that, it was just alluding to, all of this kind of background and context makes NEPA's requirement of early public input really important, especially important to people in U.S. territories, because sometimes it is literally the only way they can register their views on proposed public action that will have very significant impact on their land, their water, public health. And I guess maybe the fact that the federal government's argument is so atextual makes me somewhat optimistic here. And also maybe the fact that Native Guamanians will bear the brunt of, you know, of the federal government's failure to comply. So maybe people like Gorsuch, maybe Barrett, could be in play here, even though, obviously, as we said at the outset with the Suncor case, when it's an environmental law case, it's often without even knowing anything about the specific law or fact. We kind of know how the cases are going to shake out here. I feel like there's at least an open question. Can I refresh your memory about the major questions doctrine, Kate, because I have a fear that major questions doctrine is about to become like major climate. emergency major hazards doctrine where like all of these things also warrant exceptions to the text.

Absolutely. Yeah. Yep. Totally possible here. We should also note as a matter of history that this year, 26, marks the 125th anniversary of what is known as the insular cases. These are a set of appalling, wildly racist Supreme Court decisions that held that people in the U.S. territories are not entitled to the same constitutional rights as those individuals live. in the states. So the insular cases have never been overruled. They are a major obstacle to democracy, self-determination, and constitutional rights in the territories. If you want to learn more, I recommend the fantastic work of Christina Ponza-Krauss at Columbia Law School, including a 22 article in the Yale Law Journal called The Insular Cases run amok against constitutional exceptional exceptionalism in the territories. We should also note that we at strict scrutiny are not

alone in our disgust for the insular cases, no less than friend of the pod, Neil Gorsuch, has declared that the insular cases are, quote, long overdue for a reckoning. When we are on the same side of an issue as Neil Gorsuch, you know that's a big tent. Well, I mean, don't talk about it. Neil B, be about it. Let's see, let's do it. That's right. Unlike the humble podcasters, Neil Gorsuch can actually do something about this.

Yep. Let's do a little court culture. Yeah. Okay. Well, folks, we spent a whole summer talking about hot court reform summer, and it seems to have taken in some very unlikely places. So we just got the word that the call for court reform seems to be coming from inside the house. And by house, we mean the Texas AG's office. Yes, folks, our favorite biblical divorcee, Ken Paxton, has decided to do Leah a solid by agreeing with her very hot take from last week's term preview. Paxton, who, unbeknownst to us, is obviously a friend of the pod, agrees with Leah that everything bad that is happening is in fact the Supreme Court's fault. And the only thing that really saves us is that the Supreme Court came along and allowed super PACs. Otherwise, you could not run a race in Texas. You heard it from him without the Supreme Court.

Ken Paxton would not have a shot. I mean, he's our latest stocked clock folks. The Supreme Court has done. And because the Supreme Court continues to do absolutely terrible things. And because Ken Paxton is now agreeing with me and proving me right, wanted to announce that, yes, I am writing another book. It will not be out for a while. But the, like, I don't know, announcement of the agreement went out. It's called Identified, working on a subtitle.

But I'm super excited about it. I've been having a lot of fucking fun and giggling to myself maniacally. as I've been writing it. Can I suggest a subtitle? Yes. Identified how dudes, ex-husbands, and imbeciles came to take over. What do you think? I think dudes ex-husbands and imbeciles, the new DEI.

Identified. The rise of the new DEI. That'll be in the book for sure. Should it be in the titles, the question. Yeah. I'm workshopping it. No, that's Melissa's. I would never steal that line.

You can cite me. I'm like, just like, oh, okay. Yes. Yeah, no, like, yeah, my last book, right, I attributed, like, to you the jurisprudence of masculinity and whatnot. So, yeah, no, if I use that, obviously, you would be credited. The men's hate that one, by the way. Yeah, that's true. Keep hating.

They send us emails. They tell us that. In other book news, as we previously mentioned, Steve Vladik, actual friend of the show, has a new book, which has an actual cover and a publication date. The court we need. It's available for pre-order. And obviously, we will have Steve on the show to talk. talk about the book when it is available. We should also talk about the oral arguments in the D.C. circuit with regard to the Bozberg sanctions. Did you listen to them? Did anyone listen to these?

I listened to part of them. I did. I listened to part of them the other night while making banana bread. They were insanely long, so I think I listened to an hour of the three hours. But I found it both surreal to feel like we were back in March of 2025 with all of this parsing of what exactly Judge Boasberg's oral versus written order meant with respect to the individuals being put on planes and sent to Seacott in El Salvador. But also, like, God bless Bozberg for refusing to just let this go. And also, I learned that everyone in the administration apparently has decided to throw Christy Noem under the bus because there was a lot of talk about how she was the decision maker. And I kind of think they're saying if anyone's in contempt, it's her. Anyway, I hadn't tracked that. And now I know about it. I want to be clear for our listeners that Kate is not talking about the announcement from House Noam that Ma and Paa Noem are divorcing, right? So this is not what she's talking about. She's talking about this oral argument where apparently everyone in the government says everything is Christy Noam's fault. They should know that it's really the court. But I will just say that this news of the Noam divorce, sad to hear that their marriage went bust. I hear the divorce petition.

was submitted under wire, I mean under the wire. So that's it for this part of the episode. After the break, Kate and I will talk with Kelly Lytle Hernandez about her book, Racist by Design, which tracks the two centuries of white supremacy in U.S. immigration law. So stay with us. Strict scrutiny is brought to by Remy. It is finally spooky season.

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So I'm going to protect those babies with a nightguard. Treat, don't trick your health this month with Remy by using Code Strict to get 50% off your new nightguard with Remy club. That's 50% off at shop REMI.com slash strict with Code Strict. Thank you, Remi, for sponsoring this episode. Today we are delighted to be joined by Professor Kelly Lytle Hernandez to discuss her forthcoming book, racist by design, two centuries of U.S. immigration control. Professor Lytle Hernandez is the Thomas E. Lifka endowed chair in history at UCLA, where she studies race, immigration, policing, and mass incarceration. And in racist by design, Professor Lytle Hernandez reveals how generations of lawmakers and law enforcers

built the American immigration system to encourage white immigrants while targeting non-white migrants for exclusion, punishment, and removal. Those jaw-dropping statistics you've heard about, about how the Trump administration is submitting almost exclusively white immigrants. South Africans as refugees. They're just the latest and most egregious example of a very old phenomenon. So we're really happy to have the opportunity to discuss that troubling history and its modern implications. Welcome to the podcast, Kelly. Thank you so much for having me. Of course. So the book's title, Racist by Design, murders two powerful, potentially distinguishable claims about the U.S. immigration regime. One about structure, that the system is racist, and the other regarding intent, that the racist structure exists by design. So you address these distinct

points in the introduction where you explain, quote, when I say the U.S. immigration machine is racist, I mean that it is a system of state power that has produced, exacerbated, and entrenched the racial order, extending from European imperialism and the formation of the United States as a settler society. When I say the U.S. immigration regime is racist by design, I mean that avowed white supremacist from enslavers to eugenicists played a major role in building the regime in specific and enduring ways. Can you tell us a bit more about how those two elements of the U.S. immigration regime structure and intent operate in tandem? and why it was important to capture that in the book's title?

Sure. Well, thank you for having me on. What this book does, the major claim, is that long time ago, U.S. legislators, the Supreme Court, policy, wonks, law enforcement officers, all created something called the whites-only immigration regime. It had a lot of components to it. It had exclusion laws. It had precedents laid down by the Supreme Court. It had priority set by the the board patrol and much, much more. And that all those things together made it very difficult, very dangerous, very expensive for non-white immigrants to enter the United States. So that by the 1920s, almost all Asians were categorically banned for entering the United States. Most black folks

were categorically ineligible to enter the United States. Many Mexican immigrants have been criminalized. And there were all kinds of pathways for European immigrants, either entity United States lawfully or to legalize their status in the United States. So what I'm trying to do in this book is talk about how that system, how that machine was created over decades by people who had strong intent, who have lots of quotes in this book from the people who are writing this legislation and who are making these rulings and enforcing these laws, that their goal is one of two things, either to have a purely white nation or to keep just a backdoor ajar enough

so that guest workers, Mexican and workers and workers from the Caribbean, in particular black workers from the Caribbean, can enter through guest worker programs so that immigrants can enter on a subordinated status. So those folks built this system, and we have amended it to date, but we have not abolished it.

And there are many pieces still at work. So that's really the core claim at this book. We definitely will, Kelly, quote some of the truly jaw-dropping statements that you unearth in this book. I mean, it's not a circumstantial case you're making. There is a lot of really explicit white supremacist rhetoric that is uttered in the halls of Congress and elsewhere. And so I want to bring out a little bit of that, but maybe just to lay a little bit more foundation. So you're talking about history, and I do think that it's such an important feature of this book, which is that you note, as Leah mentioned in the introduction, that the topics that the book covers have been increasingly. salient in recent months, in particular in Trump 2.0, where the administration is, and I'm going to

quote you here, wielding the immigration system's unhinged powers and its racist designs in ways that a lot of people consider not only unconstitutional, but just plainly racist and white supremacist. But you also are very clear to emphasize that this is not a book about President Trump or his advisors and appointees. It is about the machinery that history put in their hands. And so kind of ending the racism that you identify in our immigration system will require much more than just a change in control of the White House or Congress. So can you talk a little bit about the importance of taking a view of the immigration system that emphasizes the machine more than any single actor or set of actors? Sure. Well, one thing I want to make very clear is that although we've been

many people greatly alarmed by the immigration operations of the last year, the immigration system has been racist by design from the very, very beginning, going back to the early republic. And it will not be enough to have regime change at this particular moment that we're going to have to go back and think very, very seriously about our core sets of laws and precedents and priorities when it comes to immigration control and how they disproportionately impact at this point, typically migrants coming from the global south and their extended families here in the United States. So that's the point is just to really draw out for people all the different widgets and belts and tools of this immigration machine and how they operate far beyond just

like an explicit exclusion law, like the Muslim ban, right? That there are many ways that this system impacts disproportionately impacts non-white migrants. And there are pieces that we can change, that we can grab a hold of and we can transform or dismantle. So that's what's the this book is trying to give you the great details, like the toolbox of how it was built and how we can unbuild it. So speaking of those details, you know, while making sure to take a systemic view of the entire U.S. immigration machine, you also center various personal narratives and individual influences. And I want to talk about a few of those striking remarks Kate was alluding to. So one fascinating figure in the book is Senator John Sharp Williams, who was a vocal figure in immigration debates in the

early 1900s. You write, quote, Williams urged Congress to be forthright and explicit by outright banning both Asian and black immigration. You include an utterly outrageous quote from the senator who said, quote, either this is a white man's country or it is not. If you want this country to be a white man's country, say so, speaking for myself, I love my race more than I do my family. You know, as Kate was saying, truly jaw-dropping, another fascinating figure in the book is Supreme Court Justice Stephen Field. You recount that while riding circuit in California, you know, he authored that defended the due process rights of Chinese immigrants, even though he personally harbored anti-Chinese sentiment. So he once told a friend that he had, you know, quote, always regarded the immigration of the Chinese in large numbers into our state as a serious evil and how the country was made for the Caucasian race.

You know, you describe him as an ethno-nationalist. More than a few people have somehow mistaken him or his defense of substantive due process rights or due process rights for Chinese immigrants as some sort of grand commitment to making the United States a multiracial democracy. But again, just like, wow, what were your reactions when you encountered all of these quotes? And how does it reinforce the broader argument you're advancing in the book? Sure. Well, you know, I've been doing this for a long time, about two decades. So I'm quite familiar with this language in the immigration system, which, as you say, is being uttered from the floor of Congress. It's being spewed to the New York Times, the L.A. Times.

There's nothing secretive about this. In fact, they are imploring their colleagues to develop an immigration system that is racist by design. And so, you know, that quote from Williams is quite striking because he's issuing it at a moment in the 1910s when Congress is considering establishing something called the Asiatic Bard Zone, which they do in 1917, that no person of Asian descent can enter the United States if they're born in the so-called Asiatic zone that's Bard. But they're also debating establishing a Black Bard Zone or an Africa Bard Zone. And they don't ultimately do that because they believe that since the American South has been able to disenfranchise African Americans with a literacy test, if they just adopt a literacy test within the immigration system, they'll be able to, you know, prohibit and keep, take care of black immigration, namely from the Caribbean. So that's the origins of our literacy test in the immigration system. It targets black migrants from the Caribbean, also immigrants coming from southern and Eastern Europe, Italians and Jews in particular. This is just the way in which they're talking about the United States as being a white man's republic.

And whether that's racially pure or one in which white folks are superior to non-white folks. They're just coming up with a set of agreements around white supremacy that they bake into the immigration system. And why this is so important is you think about the foundational precedents coming from the Supreme Court or our core immigration law today, the 1952 Immigration Nationality Act, all of this was written by people who were committed to the white man's republic. And so, again, we've amended the system, but we have never really gone back and said, we need to rethink all of this.

Yeah. And I want to maybe go deep on the Supreme Court for a minute. And, you know, you were talking about both the blatant anti-Black and also anti-Asian racism. And you make this striking observation about these four Supreme Court. court rulings that are known as the Chinese exclusion cases, or as you refer to them, the exclusion quartet from 1875 to 1896. So these are egregious rulings that upheld various discriminatory laws, targeting Chinese immigrants, restricting Chinese immigration. And you make this observation, and I'm going to quote again here, the last of the four,

Wong Wing, was issued on May 17, 1896. The very same day, the court issued its ruling in Plessy v. Ferguson, which sanctioned racial segregation as a legitimate form of of racial governance in the United States. In other words, the same court that signed off on Jim Crow also sanctioned the modern immigration system. By the 1920s, both would operate as highly developed machines of racial control enforcing a caste system in the United States. So so important to link those two.

And you go on to point out that Plessy, which was overruled in Brown v. Board of Education, is now seen as egregiously wrong and indeed part of the anti-canon. That has actually never happened with the Exclusion Quartet. So can you just talk a little bit more about that observation and kind of about the linkage that you identify between the immigration regime and the Jim Crow regime as both kind of these modern whites only regimes? Sure. Well, the exclusion quartet, which is Chai Long v. Freeman of 1875, Che Chan Ping of 1889, Fong U Ting of 1893, and Wong Wing of 1896, as you say, all remain operational precedent to this day that are cited by the Supreme Court to this day. Each one of them, if you go back and read the rulings, are dripping in anti-Chinese language about Chinese immigrants being a menace to our civilization, I quote, and much, much more, which I won't quote right now. I think it's worth us reconsidering whether or not the right decisions were made back then or their decisions we want to live by.

And that's really important because if you go back to Chai Long, which Stephen Field helped to navigate up to the Supreme Court, one of the principal purposes that he had in getting Chai Long to the Supreme Court was to find a way to make it legitimate to target Chinese immigrants for exclusion from the United States in a post-14th Amendment world, in a post-equal protection clause world in particular. And so he protects the due process rights of Chinese immigrants on one hand. On the other hand, he says, you know what, in the past, we allowed states, where we empowered states, to manage immigration issues, principally because slaveholders wanted to hold the power to restrict free black migration into the United States during the period of slavery during the Antebellum era. Now we're at the end of slavery. Now we've got this thing called the 14th Amendment, which protects. equal protection for all persons, at least from state violation. And if we as white nationalists want to continue to keep Chinese immigrants out of this country, we've got to find another way to do it.

We cannot depend on our state legislatures to continue to do it. So the Chai Long ruling is really important because it moves the authority for immigration control from the states to the federal government, with the purpose in the mind of Stephen Field and others being to skirt the equal protection clause of the 14th Amendment. Boom. That is the beginning of our federal immigration system with which we live today. What I found really striking about the book was, well, many things, was among them your willingness to challenge the conventional view of the Immigration and Nationality Act of 1965, also known as the Immigration Reform Act or the Heartseller Act. You write, quote, Today, the 1965 IRA is popularly hailed as a monumental civil rights achievement for banning discrimination in the

nation's visa allocation system, which led to the termination of the 1924 quota system. But you highlight several ways in which the IRA fell short, and you argue that it actually exacerbated inequity in many ways. Can you elaborate some on that? Sure. I think this is really important. First of all, among immigration historians, this is basically a consensus that the purpose of the 1965 IRA was not to change the nation's immigration patterns. In fact, it was to make it more concrete. but in a racially not explicit way or implicit way. So let me just credit my colleagues who have been making this case for many, many years.

One of the things I really want to point out in this book is the IRA of 1965 does one thing. It prohibits racism and sexism and discrimination in general in the nation's visa allocation system. This is very important. It does nothing else. It does not change all the other mechanisms. that are already working in the white-only immigration system. For example, in 1929, Congress made

it a crime to enter the United States a misdemeanor to cross the border without authorization and a felony to return after deportation without authorization. That was designed to collar Mexican immigrants in particular by senators who were very concerned about the rise of Mexican immigration to the United States. that piece of legislation in 1965 and today pretty much continues to deliver on its original attempt in the sense that the vast majority of people who are prosecuted for unlawful entry or re-entry are Latino immigrants, non-white immigrants in general. And there's all other pieces of legislation that aren't addressed by the 1965 IRA that are core to the whites-only immigration system. So instead of seeing the 1965 laws as this massive.

massive transformation. What I'm trying to do is bring people to focus on the one thing that it did, which is very important, but it was not enough to end the White's only immigration system. We continue to live with the rest of that. We continue to reckon with it, in fact. So speaking of ending that system and reckoning with it, you know, your challenge to the conventional view of the IRA is consistent with the book's broader framing as what you call a, quote, dismantling history, an act of sabotage. And you offer a quote by Kelly Hayes and Mariam Kaba on this point, quote, if one hopes to sabotage a machine being able to identify the machine is a start, but understanding how the machine functions, what its various parts do and what blows could actually disable it are also essential. So let's focus on that last part, disabling the machine. because that's where the book takes a hopeful turn, you write, quote, for those who want to dismantle the whites-only immigration system, there are plenty of blows to strike. Can you walk us through a few of your recommended priorities and actions? Happy to.

So, you know, one of the things I'm doing in this book is the historian's trick, is around periodization. That typically, and when we think about the grand scope of U.S. immigration history, we think 1924, that visa system that you mentioned, in 1965. Something bad happened in 1924, and we ended it in 1965.

What I, as a historian, want us to understand, is that those two laws, 1924, 1965, were amendments to actual ominous bills. The real pieces of legislation were the 1917 Immigration Act and the 1952 INA, right? And when you go to the 1952 INA, which continues to be the basic structure of our immigration system, there are several things that are baked into it

that we could very easily go back and change. First of all, in 1952, Congress lifted the statute of limitations on most deportations for the United States. Prior to 1952, if you had been in the country and you were undocumented and you had been here more than five years and you weren't arrested in those five years, you became legal. Not a LPR, not a legal, lawful permanent resident, but you couldn't be deported. earlier than that it had been a three-year statute of limitations. And in fact, in late 19th century, it had been a one-year statute of limitations. So one of the things I would propose is returning the statute of limitations. If we simply went back to the pre-1952 standard,

the vast majority of people who are in the United States without status today would be automatically non-deportable if we had a five-year statute limitations or even less, right? and that was the standard we previously had. Another thing we could do is update the registry date. Currently, you have to have entered the United States prior to 1972 to be eligible to adjust your status within the United States, according to the registry law. Well, you know, that's not a real date anymore.

That is a date that's been, I think, artificially held there since 1986, and we could update the registry date. So these are some things that we can do that are already written into our system and just make slight adjustments to it. And very quickly, we could radically reduce the size of the undocumented population. And those are both statutory changes, right? So what you need is Congress willing to take some action? And I guess so those are two, I think, very specific and important recommendations. And maybe let me just invite you to broaden it out a little bit in a final question, which is, you know, despite how bleak much of the subject matter is and this moment is, the book does end on an optimistic note. And you remind readers that throughout history, quote, defiant migrants, and their advocates have always figured out how to sabotage the machine in big and small ways, to muck up its operations and to even make it wobble. Now, with the machinery more flexed, but also more exposed than ever in our lifetimes,

it's time to keep pushing and make it tip. So, again, despite the bleak times that we are in, what is giving you hope that we may actually finally reach this tipping point that we can dismantle and remake the U.S. immigration system's racist machine? Well, I think we can see it for the first time in a long time. that we have been living under the mythology of the nation of immigrants for a long time. And that, I think, has done us harm because it seems so we can't believe what we're seeing right in front of our eyes. And we keep saying, but this is a nation of immigrants.

How can this be happening? Well, when you change the lens, you understand that the immigration system was built to operate this way. It was prepared and prepped to be utilized the way that it's been utilized within the last year, but also prior to that. when we can see it plain and we can identify as different parts and the migrants and the advocates we've been doing this work

for a long time get more support from the rest of us. I do believe that we can end the system and finally abolish the whites-only immigration regime.

All right, well, from your lips, that is a good place to leave things. I'm going to hold up the book, racist by design. Two centuries of U.S.

Immigration Control, Professor Kelly, Lytel Hernandez. Thank you so much for this terrific book and thank you for being with us today. Thank you for having me. Thanks to Kelly Lytle Hernandez for that great conversation. How about some favorite things before we go? I will start. I want to just briefly mention AL Press's really good piece in The New Yorker on DOJ lawyers and whether to stay or go.

Not a new question, but some of the developments are quite different in this administration from the first Trump administration, so I recommend that. And second, I am currently serving on the Appointments Committee at Penn. And we've interviewed a bunch of young scholars sort of entering law teaching. And I have to say, people seem admirably attuned to the constitutional and democratic peril of this moment, even where they're working on areas that are very far away from that, or at least that's not front and center. And it's just given me actually a lot of hope. The legal profession has comported itself, I think, in uneven ways in the last two years. But doing these interviews has made me feel like the kids are all right. And so that's one of my

favorite things. Love it. So I've got two this week, or I guess depends how you count this first one. The Love Hypothesis. I had previously read the book, which I really liked. The movie is amazing. Do you love it? I do love it. I absolutely love it. I mean, like, it's a great romance. It's very female friendship forward, right? Like, no male savior. And also the actor they picked for the male lead is really effing hot. And he had not been on my radar. I mean, like, Lily Reinhart is like really hot too. But like I just like that guy didn't even. know about him before. So that's one. So book, movie, right? Unclear if that counts as too. But the second is the public shaming of John G. Roberts. So J. Cantor at the New York Times

had a story about how at John Roberts' little summer retreat in, you know, Northeast, people used to kind of think it fun and great that they had a chief justice amongst their midst. And now, right, they basically publicly shame him. And so when he walks by the brewery, They chant shame on you. And I just think that like none of the people who have been enabling this should be like having these lovely public vacation gatherings, right? Like they should be bothered civilly and politely. But yeah, they should be told to feel shame. So I thought what was so interesting about this was he has a vacation house on an island.

Like, I mean, you actually have to take a boat to get there. And so these protesters are standing 10 toes down on this. And they call this up kayactivists. I loved it. The other really amazing part was there's a part in the story where Jody recounts that a young woman goes up to the protesters. It's like, you know, what are you trying to solve here? What's the outcome that you're seeking? And it's John Roberts's daughter.

And she talks about how, like, you know, we don't have the same politics, but he's civil to me. and he tolerates me in his life as his daughter. And I was like, this is the movie I want. I want, like, there's a great movie in here about a chief justice, very conservative, and his, you know, reverse Alex P. Keaton daughter. And I'm like, that's what I want next. How does the movie end? I don't know. I don't know.

But I'm not sure if I want this movie. I thought this was interesting. Speaking of daughters, our friend of the pod and former strict scrutiny guests, Representative LaMonica McIver, gave birth to a baby girl. So congrats to her. and her family on that arrival. I will also say that I am super happy because the different world reboot is coming back to Netflix.

It got a second season. I'm so excited. I watched the whole first season in a blur in Austin talking to all of my friends because we watched the first, a different world over and over again in college, and we were so happy.

This is really, I don't know if this is for the kids. It's really, I think, for Gen X, and that's fine with me. I'm happy to support this and watch this as many. times as is needed for a third season. I also read Swan Song by Earl Spencer. I don't know that I learned anything different, but I enjoyed it. I didn't learn that much that was new, but it really seemed more about Earl Spencer than Princess Diana, but whatever, it was fine. I was at the University of Akron

for Constitution Day, and I met some great stricties there, including Natalie. I also had the chance to talk with Professor Tracy Thomas, who heads the Akron Center for Constitutional Law, which is one of four Congressually created centers on constitutional law in the country. And in addition to doing all of her work at Akron, Professor Thomas is the author of a new book. It's called The First Woman Judge, and it is a biography of Ohio's own Florence Allen, who is the first woman to be appointed to a federal court. And OG Stricties will remember way, way back in the pandemic, we did a book talk with Renee Nake Jefferson and Hannah Johnson, who are the authors of shortlisted women in the shadows of the Supreme Court, and that was the book where I first became acquainted with Florence Ellen. So I have this new book on my stand, and I'm ready to dive into it. I'm really excited about it. She's a fascinating character. Apparently, she lived with two other women. She never married, but she lived with two other women and supported them. And there we are. Really interesting history for a time when maybe some people felt compelled to be more closeted with their lives.

Yeah. So we have some housekeeping, something we have talked about before, and that is that CrookedCon is happening November 5th to 7th in Washington, D.C. And it's going to be even bigger than last year. And last year was pretty big, not to brag. In case you missed it, the lineup was just released. And we are super duper excited about our live show on November 6, where we will be joined by Total Badass and Icon, Cheryl and Eiffle. She's an attorney, civil rights activist, and the former president of the NAACP. legal defense fund. We cannot think of a better person to help us break down all of the nonsense that is going on and has been going on for the past year. So Carolyn is just the perfect guest. She's so smart. She's so trenchant. And like us, she believes that the Reconstruction Amendment should not be consigned to the dustbin of history, that they are actually part of the Constitution. And she's working double time to make sure everyone knows that. And we're going to talk about it when she is with us at CricketCon. So we will be at Crickland. Cricket con for that live show on Friday night. And then we will be there all day on Saturday for many different events, including a panel with some of our favorites. And we're going to talk about a lot of different stuff. So make sure you're there for that, too. Okay. So that means you have two different opportunities to hang with us. You can come for one. You can come for both. The two shows will be very different, but equally fun. You can view the full CricketCon lineup and get tickets at crookedcon.com. Ticket prices are going to go up tomorrow. So get yours now to lock in the early bird price. And we will see you there.

strict scrutiny is a crooked media production. Our show is produced by Melody Raoul and Farah Safari. Music is by Eddie Cooper. Our team includes Alona Mankowski, Matt de Groot, Ben Hathcote, Adam Lippert, and Eric Schute. Our production staff is proudly unionized with the Writers Guild of America East.