Strict Scrutiny - Time for Some Bad Decisions

Episode Date: May 27, 2024

There are more red flags flying from House Alito! Plus, that same guy authored an opinion in a major voting discrimination case, and somehow it's worse than expected. Plus, Melissa and Kate talk with Shefali Luthra about her important new book, Undue Burden: Life and Death Decisions in Post-Roe America.New merch alert!! Our new t-shirts and mugs are just thing for the hellscape to come in the final weeks of the SCOTUS term.Order Undue Burden at Bookshop.org and get 10% off Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a 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. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court, red flags, and the legal culture that surrounds them. We're your hosts today. I'm Melissa Murray. I'm Kate Shaw. And I'm Leah Lippman. The band is back together.

And Kate Shaw is here to defend someone who was unfairly maligned last show. Not, not Sam Flagg-Polito, but rather Kate herself, who apparently does know about the Kendrick Drake beef. I do. I think we have too much pressing news to cover today. And I also think that me doing my best recitation of the origins and present status of the Kendrick Lamar Drake beef would be like drunk history or something. Like I would just get lots of things wrong. I don't think America needs that right now. But I did want to say I was aware of the beef. And my utter cluelessness really is mostly confined to television. Like I am aware in general terms of many developments in the worlds of music and film. It's really just TV. So, you know, I just felt like I wasn't here to defend myself last week. And I wanted to do that today.

Okay. It's very convenient that there's so much going on that you can't actually get into it, but okay. Is that finding clearly erroneous? It might be. Let's take it back to the district court for fact-finding. Or not, as it were. You guys can just declare it clearly erroneous, and it's as easy as that. By judicial fiat, as it were. Exactly.

Because we presume that Melissa and I say everything in good faith. And we said you didn't know about the Kendrick Drake beef, ergo, it was true. So as Kate said, we really do have a lot to cover today. So here's what we have in store for you. It is time for a lot of bad decisions. Tis the damn season. Let's make some bad decisions. Let's make a few. Flags, opinions, etc. So we're going to first cover the court's opinion in the major voter discrimination case, Alexander v. South Carolina chapter of the NAACP. Then we're going to have another lengthy court culture segment that will include the latest updates on Scandalito, i.e. Sam Stop the Stilito. And as promised, we will bring you up to speed on the justices' appearances on the speaking circuit.

And we will finally have a lightning round on other recently released opinions. I just, Scandalito, Stop the Stilito, I just feel like there's Can't Stop, Won't Stop Energy with these names. There are so many opportunities. Well, I mean, Can't Stop, Won't Stop Energy with Sam Alito.

Right, exactly. And also the names, the portmanteaus. Green flag to us with the Sam Alito nicknames, red flag to them with all of the damn flags. I mean, Leah, I just, I think it might be clearly erroneous to presume that he knew that the flag was an appeal to heaven flag as opposed to the national flag of Lebanon. It's an easy mistake to make. We presume how Alido acts in good faith in everything they deign to fly.

I mean, although it does say appeal to heaven on the flag, but I mean, we're getting there. Okay, so just to finish off the roadmap, at the end of the episode, we're going to have a special court culture segment featuring a conversation

with Shefali Luthra about her new book, Undue Burden, Life and Death Decisions in Post-Roe America. So stay tuned for that. That's also a Sam Alito segment, really. Yes. He is the star of today's episode. Sam Alito at your cervix. Absolutely. Right there with a flag. Planting a flag in your cervix upside down. You know what else I think Sam Alito has a hand in? The unconscionable delay that we are currently witnessing in terms of the time that has lapsed between the argument in the Trump immunity case and today, when we, of course, have still no decision in that case. As of last Tuesday, more time had passed since the immunity

argument than the time it took for the court to decide the Trump disqualification case, Trump versus Anderson. That decision took 25 days. And again, last week, this delay exceeded that span. And by the time this episode is in our listeners' ears, it's going to be over a month since the court heard argument in the immunity case. And look, as May turns to June, the possibility of a trial actually happening before the election becomes ever more remote. And as we have said throughout, maybe that is the point. But it seems important for us to continue to time keep this matter. Kate, are you suggesting that the lapse in time between hearing this case and issuing a decision might have something to do with the justices' views of whether or not the steal apparently happened or whether the steal needed to be stopped? Is that what you're suggesting? We have to presume good faith.

I think we should. No, I'm sure not. We can appeal to heaven if we want a quicker decision. That's right. Correct. Thank you. First up, as we noted, is the question, is racial discrimination in voting actually fine since accusing people of racial discrimination is the real racism?

Sam Alito has investigated this question and concluded that the answer is yes. As Leah suggests, we did get an opinion, a proverbial bad decision in the longest outstanding case on the court's docket, Alexander, well, I guess for now, Alexander versus NAACP of South Carolina. Just a quick refresher on the facts of this case. This was the case where the South Carolina legislature redistricted after the 2020 census. The legislature had to redistrict because there were some underpopulated districts as well as some overpopulated districts. So there were too many people in some districts and too few people in others, and that violated the one person, one vote principle. Now, there happened to be an

underpopulated district next to an overpopulated district. But instead of moving voters from the overpopulated district into the underpopulated district, which would have been a reasonable thing to do, the galaxy brains of the South Carolina legislature decided to shuffle voters around in both of these districts, basically moving some voters out of the South Carolina legislature decided to shuffle voters around in both of these districts, basically moving some voters out of the underpopulated district, which basically exacerbated the whole problem. And South Carolina, importantly, kept the percentage of Black voters the same in the underpopulated district, including by moving a large number of Black voters out of that district, thereby ensuring that that district, which is Congresswoman Nancy Mace's district, remained a safe Republican district rather than a competitive

one, because obviously democracy and competition, electoral competition, all overrated. So a three judge district court found this map was a racial gerrymander, an unconstitutional racial gerrymander, that is that the legislature had essentially used race as a sorting mechanism and that race had predominated in the legislature's restructuring of these districts. And last Thursday, we got the six to three opinion written by none other than voting rights enthusiast himself, Sam Stop the Stiletto, who reversed the three judge district court panel who had concluded that the South Carolina map constituted an invalid racial gerrymander. The Supreme Court upheld the South Carolina maps on the conclusion that race did not predominate in the drawing of the map. So let that settle in. I mean, the real question in this case was how to determine in circumstances where race and

partisanship often ran together because, for example, African Americans tend to vote Democrat, how to determine whether race predominated in the drawing of the map as opposed to partisanship. This justice, Samuel Alito, yes, the one whose houses often fly flags, sympathizing with insurrectionists and other attempts to subvert democracy, actually allowed the South Carolina state legislature to use the undemocratic, racially gerrymandered map because it wasn't apparently racially gerrymandered. So that's the sort of substantive bottom line. In terms of timing, which we were talking about a moment ago in the context of immunity, it is worth noting

that this has been going on for quite some time. So the three-judge district court panel Melissa was just talking about ruled in early 2023 that the map was unconstitutional, but it put its decision on hold while the Republican legislators appealed to the Supreme Court. And the parties had asked SCOTUS to issue the decision in this case by January 1st, 2024, that's six months ago, so that the map's validity could be determined before the South Carolina primary election. When the court didn't do that, did not issue a decision anywhere near January 1st, that deadline, the district court panel threw up its hands and said the map, which it had determined was unconstitutional, would have to be used in the primary election. Really unfortunate. So basically the court's inaction in this case already guaranteed

a win for Republicans in South Carolina. And now we get this opinion. So can I add something here? I mean, this is shades of Allen versus Milligan, where, again, the court makes a decision. In that case, it was allowed the maps to be used in the midterm election, even though it later went back and said that the maps were impermissibly gerrymandered. The court does this all the time, like drags its feet on something even though an election is looming. And in the end, basically through its inaction winds up tilting the field in favor of one party. And that party is usually the Republican party. And yet,

this is a completely legitimate court. So that was nice of you to say usually there, Melissa. I'm fair-minded. Nothing if not fair. Nothing if not fair-minded. There were a number of separate opinions in this case from the very legitimate court. So Justice Thomas wrote a concurrence in which he said, let's maybe never hear racial gerrymandering or vote dilution claims at all. Maybe they're not justiciable. He encouraged courts to possibly, quote, vacate the field, end quote, of districting, which I think would also call into question the one person, one vote principle, which prevents legislatures from cramming a bunch of people into one district and not very many people into others, thereby giving some people more political power. Another separate opinion by Justice Kagan was a dissent for the three Democratic appointees.

The dissent said the majority has things, quote, upside down, just like the flag, Sam Alito, and or Martha Ann Kluge, end quote. Do you think she added that in? No, that wasn't. No. OK, so obviously she didn't say the flag. No, I bet that was in there before the flag story

would be my guess. Is she just psychic? She's like the Dionne Warwick of the court. She knew this was coming. Well, OK, here, here's the thing is in Jodi Kantor's story about the upside down flag, she reported that word about the upside down flag had made its way to the court, right around that time. So it's possible other people at the court knew about this well before any of us did. So maybe not adding in upside down after the story broke but upside down was in there and when did elena kagan know that sam

alito's house was flying stop the steel flags who is to say queen shit queen shit total fucking queen shit i mean she also could have quote, his views are a lone pine among American law. But, you know, it's not that if you write an appeal to heaven, but it's not it's possible she didn't know about those flags. Anyways, bottom line on this Alito opinion, it's bad. And it's somehow, at least in my view, worse than expected after the argument, but about as bad as you would expect an Alito opinion on voting rights slash racial discrimination and voting to be. So Leah just said it was an Alito opinion about voting rights, and it was bad. And

that should end things, QED. But let's go into it and explain why exactly it is so bad. So I'm going to focus on three reasons why it is so, so bad. First, this decision makes establishing a claim of racial gerrymandering exceptionally difficult. But at the same time, it makes it much easier for the Supreme Court to reverse a district court's finding of racial gerrymandering. As Justice Kagan says in her dissent, quote, perhaps most dispiriting is what lies behind the court's new approach. It's special rules to specially disadvantaged suits to remedy race-based redistricting, end quote. So Justice Alito claimed that the circumstantial

evidence in this case that race predominated in the decisions about how and where to draw these map lines was weak, especially, he said, in light of the lack of smoking gun direct evidence. And he came very close to holding, I don't know if you guys thought he actually held, I couldn't totally tell, but certainly strongly intimated that in a case like this, plaintiffs have to submit an alternative map, or there's no way to make out a claim of racial gerrymandering. The Alito opinion also says that courts can draw... Should we just say what an alternative map is? So when, you know, the suggestion is that plaintiffs would have to submit an alternative map showing that the legislature could draw districts that maintain

the same partisan balance, but without taking account of race or, you know, doing the same thing with respect to race. And this came up during the oral argument, and there was a real debate between Justice Alito and Justice Kagan. Justice Kagan asserted, I think correctly, that the court's prior precedence had disclaimed any requirement of the submission of an alternative map. But that is, I think, pretty clearly no longer the law of the land. Although there's, again, debate about exactly how much this Cooper case, that's the earlier case that looked a lot like this one, is essentially repudiated by this opinion. But Alito basically says that what courts can do is they can draw an adverse inference when a party fails to produce highly probative evidence. And here he seems to mean direct evidence that the legislature specifically relied on race. Like the legislature said something like, yeah, we did it. We did a racial gerrymander. We were focused on moving black voters into or out of particular districts. And absent that, courts can draw an adverse inference,

meaning an inference against those challenging a map as unconstitutional. It's basically importing the disparate impact intent requirement into the voting rights arena, making it much harder to establish those claims. So one, it makes it harder to prevail in a racial gerrymandering claim. It makes it easier for the court to reverse it. It means that claimants have to have really direct evidence of intentional efforts to discriminate on the basis of race and drawing the maps. And then finally, the legal opinion also says that courts must presume that the legislature acted in good faith, especially when they say they acted in good faith. And that makes the plaintiff's burden in these cases harder. And it allows SCOTUS again

to second guess the district court's conclusions that race predominated and how the legislature chose to draw the districts, even if there is a factual finding that in fact race did predominate. And that part is bonkers to me, like just presume the good faith of the legislature. Kate, we have talked about this endlessly in our work on Dobbs, but I see you were chomping at the bit. I just thought it was so interesting. Alito is so fixated on the good faith of state legislatures. He talks about this presumption of good faith, presume good faith at least half a dozen times in the majority opinion in this case. And we have, as you just mentioned, Melissa talked about this in the context of Dobbs. This is also present in his Dobbs opinion, which is like this notion that the only institutions of government that can be

trusted are state legislatures. Okay, maybe other than SCOTUS, like that they of course can be trusted, and then state legislators. And that's it, like not state courts, certainly not federal prosecutors, at least when a Republican president is under investigation or indictment. But these wildly gerrymandered state legislatures, like, got to trust those boys. And that just, like, is one of the key through lines of this case. And there's just, like, this reference that, like, I just, my eyes rolled so hard. So Alito, and I'm going to quote here, the federal judiciaries do respect for the judgment of state legislators who are similarly bound by an oath to follow the Constitution. It's like, dude, that's true about every government official. But the only ones you want to confer this presumption on is state legislatures and wildly gerrymandered ones. And I think that's no accident. So just some quick additional notes on the facts of this case.

When Melissa is saying the court made it harder to prove racial gerrymandering, it's worth just quickly recapping all the evidence that the plaintiffs in this case had. So the plaintiffs elicited testimony that the map drawers here had racial demographics literally in front of them, like they're staring at them on the screen as they drew the maps here. Plaintiffs also had statistics on how statistics suggested this was about race. The state didn't submit any countervailing statistical evidence or experts. Remember, this is what Justice Kagan had said about this case in the argument characterizing the plaintiff's case versus the legislature's case. And as we've now noted, the court faulted the plaintiffs for not submitting an alternative map showing the

legislature could have accomplished the same partisan balance without taking account of race, even though the state had initially denied that it was engaged in partisan gerrymandering, thereby suggesting the plaintiffs need not produce some alternative map or had their experts run additional regressions to determine how much partisanship versus race played a factor here. And the court's previous opinion in Cooper had said that wasn't required. And yet the court still says, no, no, no, district court finding that race predominated, clearly erroneous. Yeah. Okay. So second thing we wanted to drill down on is just the overpowering strong grievance energy in this opinion. Leah alluded to it up at the top of our discussion. But basically, the thrust of this opinion seems to be the real racism or the real racists are the people accusing racists of racism rather than people doing the racism. Did I like basically distill that properly? I think that's what he's claiming. The real racists are the people who claim racism. They are. It's civil rights lawyers are the real racists. Yeah. So civil rights actually is racism.

That's right. We can even just excise the lawyers from that claim. So, you know, in explaining why courts have to presume that legislatures acted in good faith, the Alito majority says, quote, when a federal court finds that race drove a legislature's redistricting decisions, it is declaring the legislature engaged in, quote, offensive and demeaning, unquote, conduct that bears an uncomfortable resemblance to political apartheid. We should not be quick to hurl such accusations at the political branches. So, okay, so the real reason here- Definitely don't say apartheid. Right.

Don't say that. Not you, Sam Alito. You're hurting their feelings. But it's like, it's civil rights lawyers bringing these claims and then it's district courts accepting these claims. Those are the real racists, it seems, in this formulation. So there's a lot in this opinion. So Kate's identified the second thing, like just the big grievance energy. The third thing that we wanted to identify here is what this opinion says about this court as an institution. So the Chief Justice was in the

majority here. So that means he had the prerogative of assigning this opinion to anyone in the majority, including himself. And with that prerogative, the Chief Justice of the United States decided to assign this opinion to none other than voting rights hero Sam Alito, the same man who has gutted the Equal Protection Clause for voting in cases like Abbott v. Perez and dismantled Section 2 in Brnovich v. Democratic National Committee. That's the guy you got to write this opinion about racial gerrymandering.

Well done, sir. I mean, it's not like he has a lot of good options, but can you imagine looking around the conference room and that's who you choose? Like what? I mean, like Brett Kavanaugh was like, pick me. Love me. He's right there. Pick me.

Pick me. No. Not that it would have been that much better, but I do think the grievance energy here is just really only possible in an Alito opinion. Less the real racists are the folks crying about racism. But it's important to note that all of the other Republican appointees joined that opinion, right? Like they are not so turned off by that grievance energy and all of the other problems in here that they were like, Sam, want to take that out or tone that down? Unless they did. And this is the tone down version.

Well, I mean, I was going to say because Clarence Thomas was like, I would go further and just completely render racial gerrymandering a non-justiciable political question per Ruscio. And so maybe this was the chief justice literally splitting the baby. that this opinion is released the very same week we learn Sam Alito's houses displayed multiple flags showing sympathy for election denialism, insurrectionists, and Christian theocracy. Like that guy, the one with several houses with those flags, basically calling on MAGA heads to seize political power by any means necessary, including coups, and advocating for using political power to impose a Christian theocracy and then blaming it on his wife, like he just made up some legal rules that make it easier for Republican states to engage in redistricting to help white Republicans maximize their political power, like the political movement and his jurisprudence are totally aligned.

And Alito had the gall, the utter gall to write in this opinion, quote, we must be wary of plaintiffs who seek to transform federal courts into, quote, weapons of political warfare, end quote, that will deliver victories that eluded them, quote, in the political arena, end quote. This is literally Sam Alito's entire jurisprudence. And again, I get that the other Republican appointees, at least as far as we know, are not displaying stop the steal flags or appeal to heaven flags, which we'll describe in a second. And yet they are joining this opinion that furthers this political agenda with all of this grievance narrative. And it's wild. So there's a lot in the Kagan dissent that we need to talk about. But can we take another beat on the Thomas concurrence first? Because Melissa already alluded to this, right?

But it's, you know, he is suggesting that just as the court decided that partisan gerrymanders are non-justiciable, he is suggesting the court do the same thing with racial gerrymanders.

And also, I think, with population-based challenges, like he is suggesting that the court went astray in the one-person, one-vote line of cases, beginning with Baker v. Carr, Reynolds v. Sims, and many, many cases that follow those two. And I mean, that is a truly stunning suggestion, right? So if there's no one-person, one-vote, just so people understand what this means, a state legislature that's already wildly partisan gerrymandered could be like, OK, we're going to give all of the rural counties in Alabama, like all the rural, mostly white counties, a huge amount of power in the state legislature. And like one seat out of 100 could go to the more diverse cities in the state of Alabama. And the federal constitution would have nothing to say about that.

And federal courts could do nothing about that. Like, that was the state of play before the one person, one vote cases required population equality and legislative representation. And I think Thomas is saying we should dial the clock back. Well, I mean, it's even, I think, more troubling than that, because previously, all of these redistricting cases prior to Baker v. Carr had been brought under the guarantee clause, which had since the 1800s been understood to be framing a non-justiciable political question. But in Baker versus Carr, the court determined that when you thread these cases through the equal protection clause, they actually are justiciable. They present an actual legal

question that the court can address. And Thomas is basically like, no, get it out of federal court entirely, all of this, anything to do with whether or not race is used to draw these districts or to balance these districts or even to be considered in the representation of the legislature or any other democratic organism. The courts have nothing to say about it. This puts us all the way back to the pre-Baker versus Carr times where Black people in the South couldn't be represented. I mean, we've already hobbled the Voting Rights Act to return racial gerrymandering to the pre-Baker state, I think, just finishes it off. And you have true distortion in the electoral landscape. And it seems like that's exactly what he wants. I mean, I was trying to remember.

I know that there have been – we have assumed that he and some of the others in the Rucho majority are skeptical of the logic of Baker versus Carr in the one-person, one-vote cases. But I'm not sure I remember him saying it as explicitly as he does here. And I found it chilling. I thought in Ewan well. Ewan well. In Ewan well? Ewan well. We've already seen the chaos that the shift to rendering partisan gerrymandering a non-justiciable

political question has done, right? So because race and political preferences are so closely aligned, there's huge incentives for state legislatures to frame what are actually racial gerrymanders in the lens of partisan gerrymandering to get them outside of the courts, the federal courts. But if they take racial gerrymandering and make that outside of the courts, the federal courts. But if they take racial gerrymandering and make that a non-judicial political question, all bets are off and they can just be bald about it all of the time. And there's nothing anyone can do about it. Redistricting commissions, all of this, none of this is going to be able to address that, at least not in a way

that provides relief immediately and in time for it to have real effect in the democratic process. Okay, so that's an ominous concurrence for him alone. I mean, this is what he does. He's nothing but ominous concurrences, lone concurrences. And folks will say he's by himself on this one, but it doesn't matter. He will farm this out to the Fifth Circuit where his acolytes will husband this into a flowering thread of jurisprudence, and it will make its way back to the Supreme Court, and they will eventually do it if they have a majority to do so. Very much depends on what the court looks like in two years, five years. Okay. So we also wanted to highlight a few things about the Kagan dissent. And as we've already mentioned, it repeatedly accuses the majority of basically turning

Alito's dissent in Cooper into the law. And remember, Kagan wrote Cooper, so she knows where she speaks. The second thing that's really worth noting about the Kagan dissent is that she is the queen of the callback. She responds to the grievance energy of the majority by invoking SFFA versus Harvard against them. So she notes, quote, this court is not supposed to be so fearful of telling discriminators, including states, to stop discriminating. In other decisions, the court has prided itself on halting race-based decision-making wherever it arises, even though serving far more commendable goals than partisan advantage, end quote. It basically says explicitly

that the majority thinks the real racism is civil rights litigation and accusations of racism, as we were saying earlier. So let me just quote from Kagan. So the problem was more with challenging racial gerrymanders than with putting them into place. The suspicion and indeed derision of suits brought to stop racial gerrymanders are self-evident. The intent to insulate states from those suits, no less so. And we wanted to highlight a few sentences from the closing paragraph of her dissent, which says, quote, what a message to send to state legislators and mapmakers about racial gerrymandering. Those actors will often have an incentive to use race as a proxy to achieve partisan ends. And occasionally, they might want to straight up suppress the electoral influence of minority voters. Go right ahead,

this court says to states today. And so this odious practice of sorting citizens built on racial generalizations and exploiting racial divisions will continue. In the electoral sphere especially, where ugly patterns of pervasive racial discrimination have so long governed, we should demand better. Of ourselves, of our political representatives, and most of all, of this court. Respectfully, I dissent. Elena, why respectfully? I don't know. I don't know.

Same note. Same note. I did like the use of odious, which was a callback to the affirmative action cases. This is good. Is she going to have to drop respectfully in some other cases coming up and wants to hold her fire? I'm Tala. I mean, can we talk about that? We're just getting started and we're already on the precipice of demolishing one person, one vote. We're one decision into bad decision season. It's not even June. It's not even June.

I mean, think about that. Yeah. Like, I mean, what hellscape are they preparing to unleash? Well, Sam Alito did give us some clues based on the latest flag we learned he flew. It's a heavenscape, not a hellscape. Okay. We're going to take a quick break, but we have a favor to ask. This time of the year is the most important for the show and our audience.

So if this show helped demystify some bad decisions, some questionable flags, or some red flags in the bad decisions, make sure to subscribe and share with your friends. Thanks for your support. All right, well, that seems like as good a time as any to transition to court culture. First up, a new segment that we are piloting that is called, we're working out titles, but one possible tentative title is the red flags all over the Supreme Court. So write and tell us if you like that one. Or alternatively, Sam Alito, a red flag at the Supreme Court, also an option. I don't know which one I like better. I think. I'm not sure.

I mean, could go either way. But in any event, move over, Scandaval. There's a new scandal-laden bitch in town. That's right. We have more Scandalito news to cover, listeners. Specifically, more news about our friend of the pod, Sam Stop the Steelito, and how deep he is into the Project 2025 QAnon Libs of TikTok world. Otherwise known as the court's best and finest Fox grandpa. But it's so much deeper than that, even. I mean, Fox grandpa is kind of a compliment at this point.

I think that's right. Okay, so brief recap, as you will recall. That's the median Republican justice on the court. Yeah, yeah, yeah. He is now no longer anywhere near that. But just to quickly recap sort of what happened before the most recent event. So Leah and Melissa in their epic last episode described Jodi Kantor's reporting, her initial reporting on the fact that the Alito house. We did miss you. Like, I mean, we did miss you. I love when I, I mean, I prefer to be here, but if I'm not here.

Is it like when you come back from a trip abroad and your house is a total disaster because we felt like it was a little chaotic. No, it was the best. I like downloaded it at 7 o'clock on Monday morning and was howling with laughter. You guys were amazing. But in case anyone missed it, let me just – I can't do it to thank you, but I can't do it justice. which is that the Alito's home in the D.C. suburbs displayed an inverted American flag on the eve of Joe Biden's inauguration just a few days before January 20th, 2021. By that point, the inverted flag had become a symbol of the Stop the Steal movement. Some January Sixers carried it as they stormed the Capitol. Lots of homes in MAGA areas of the country flew the same.

And Alito did give some comments to The Times. He did not deny flying the flag or he did not deny that his house flew the same. And Alito did give some comments to the Times. He did not deny flying the flag, or he did not deny that his house flew the flag. And he did not deny that the inverted flag has this MAGA J6 meaning. But rather, his statement actually, to me, seemed to kind of accept the semiotics of said inverted flag because, you know, he basically said there was a reasonable explanation, which is that his wife hoisted the flag in response to a neighbor displaying an F Trump sign and then possibly displaying another unspecified sign that attacked Alito or the Alitos personally. And then the neighbor called his wife the C word in an altercation. So on Alito's own telling, the fight was about Trump. The C word was coup, coup starter.

And so the flag goes up. And so I don't think his telling in any way refutes, again, the semiotics of the flag, even though there are commentators out there who have tried to do that. Well, we'll talk about that in a second. Mark Payoletta has been working overtime on Twitter. Who could have predicted? It just leaned into the whole, we were just owning the libs, right? Like, they insulted me. And so I we were just owning the libs, right? Like they insulted me. And so I had to express support for a coup, right? It's the perfect meme of Joe Biden.

I don't know, like did something I don't like. Therefore, I need to support the guy who's playing footsie with Nazis, right? Like that whole shtick. Anyway, so Jodi Kantor of the New York Times had another story about another flag flown by House Alito, this one at their Long Beach Island, New Jersey home in summer 2023. So I know we all thought the Jersey Shore was nothing but Jim Tan laundry energy. G-T-L.

But it turns out G-T-L was actually Jim Tan loudly voiced support for insurrections and Christian theocracy. I'm not sure they're doing much Jim Tanning in Al for insurrections and Christian theocracy. I'm not sure they're doing much Jim Tanning in the Alito household either, but go on. They're definitely DTC. Some people don't naturally tan. DTC. Down to coup. Down to coup.

So Jodi Kantor's latest reports that House Alito was proudly displaying a new flag, this time right side up. And what flag did Sam and Martha Ann wave loud and proud? The Appeal to Heaven flag, which is another flag flown by January Sixers, also sometimes known as the Lone Pine flag. The Appeal to Heaven flag, or the Lone Pine flag as it is known, has a lone pine tree and the words Appeal to Heaven on it. And it traces back to the American Revolution, but it has fallen into relative obscurity over the last couple of centuries until recent years. As Jodi Kantor reports, the flag has resurfaced as a quote, symbol of support for former President

Donald Trump for a religious strand of the Stop the Steal campaign and for a push to remake American government in Christian terms, end quote. Literally, this is an appeal to resist unjust government and impose a Christian order on the country. And it is closely associated with the new apostolic reformation theological movement, which has strains of Christian nationalism, dominionism, and the Seven Mountain Mandate. If you don't know what those things are, get on Google and find out because it's real, real big Gilead energy and you should know about it. And it basically posits that all of the institutions of government and society, including the media and education, should be controlled by Christian evangelicals in accordance with the teachings

of Christianity. And this was the flag that House Alito chose to display at the beach in July, August, and September of 2023. And it has also been noted by Andy Kroll of ProPublica that this particular flag, the Appeal to Heaven flag, has also flown outside of Leonard Leo's house as well. So we will discuss this, though we'll note that House Alito's second pro-theocracy, anti-democracy flag is really raising some questions already answered by House Alito's first anti-democracy flag. But we need to add a few more news items in order to frame the discussion.

And that is Chris Geidner's, who runs the indispensable Law Dork Substack newsletter. Chris Geidner broke the story that suggests Sam Alito might have participated in the culture war boycott of Bud Light. Brett Kavanaugh would never. Chris Geidner's exclusive on Law Dork goes a little like this. So you might remember last summer, the MAGA elements got all worked up about Bud Light and called for a boycott of Bud Light because they are real Americans. And it was a boycott that was animated by the fact that Bud Light had included trans people in a marketing campaign. On August 13th of 2023, the Libs of TikTok creator posted on Twitter an anti-trans message about one of the transgender

people who had a small role in the Bud Light marketing campaign. And the day after the Libs of TikTok's latest post to stoke the anti-trans fever around that Bud Light boycott, one Samuel A. Alito sold his shares in Bud Light and purchased stock in another beer company, Bud Light's rival, Coors. Still conservative, but not using trans people in their marketing campaigns. I mean, huge props to Geidner for putting the timing of all of that together. That was amazing reporting. And also, I think it just helps us have a more holistic discussion about what we have learned about Sam Alito in the past week to two weeks of our national life. Can I say something about that? So there are folks all over Twitter saying that like Geithner going in on this Bud Light stuff is just like real small potatoes, not a big deal.

But again, it's like all of the evidence like collectively, not just by itself. Like you have to look at it as sort of like a web, like a collective web of information that really gives the impression that this is a guy who's really deep, deep, deep in this wormhole. And that's what we want to discuss. I think the Bud Light stuff is pretty scandalous on its own, but certainly in the context of the flag flying. I mean, look, they shouldn't be buying and selling individual stocks at all. And they certainly shouldn't be doing it in response to like a call going out from libs of TikTok, which seems like this is what was happening. Martha Ann, get our broker on the phone right now. Okay. But here's the thing.

Here's the thing. Imagine a Supreme Court justice just sitting there during his summer recess, like angrily refreshing the libs of TikTok feed, getting increasingly agitated. So he has to like move around small amounts of his money in order to send some sort of weird culture war grievance signal. Like it's just so small and pathetic. There it is. Yes. But very Magalito. So what does this all say about Sam Alito? And I think what we're putting together is like he's deep in it. Yeah. And he's just deeper in it than insofar as the kind of conservative ecosystem has different chambers in it. We knew he was deep in the Fox News chamber, but there are

darker and more far-right chambers, and I think he is in all of them. I think we have learned that. He's in the circle with Brutus and Cassius, the final circle. Well, we had said this before. This is the first time we've surfaced the idea that Sam Alito is deep, deep, deep into all of this. So let's roll some tape. We've been here before. If you consume Fox News nonstop, you are aware that there is a suggestion out there in that metaverse about how President Biden may have given money to Iran and that this is some huge constitutional crisis. And so this is Sam Alito channeling that theory and suggesting, well, maybe states would go ahead and disqualify Biden because he gave money to Iran. Again, you truly cannot understand this man unless you watch

Fox News nonstop and just scream at the television like an angry old Fox News grandpa. And as we were saying, you know, I know some people last flag story wondered, well, I didn't know the upside down flag was a symbol of stop the steal. So how do I know the Alitos do? And it's part of this that I think Geithner's reporting, as well as Jodi's latest, really rebuts, right? Because people who are in this world know what it means, right? Like Leonard Leo is flying, appeal to heaven flag. This is someone who, again, is spending his summer recess getting just increasingly worked up over the libs of TikTok-encouraged, you know, anti-trans boycott of Bud Light. I mean.

They knew what this meant. Just in terms of just some reforms, like Supreme Court justices should not have individual stocks. Just get a fucking mutual fund like everyone else. Right? Yeah. Or blind trust even better. But then how could you move smaller dollar amounts around in order to like get at your

petty conservative grievances? Own the lips. Like, what are you going to do? Right. I mean, you may just have to do it through your opinions like a normal justice. But these strains of defense, either they might not have known what the upside down flag meant or – But you were flying a flag upside down. You know that's not good.

You're not even supposed to do that. No. You know, look, you know, Supreme Court has said, like, you know, you can't constitutionally be punished for disrespecting a flag. But there is a, you know, precatory federal statute that says you're not supposed to do this except in like dire emergencies. And also like they're the ones who say they are the true patriots. Like you can't just like mess with a flag like that and claim the mantle of patriotism. Right. Sure. No. Did you see the Bud Light commercials? It was an emergency. So there's that. They're like, you know, who knows what the symbolism was. They may not have

known or it was justified. That's as to the inverted flag. As to the appeal to heaven flag, there's also like an online contingent that seems to be suggesting this is a revolutionary symbol. She probably thought it was a Lebanese flag. She was sort of showing support. George Washington flew this. And it's just like – it's just an insane claim. Flags signify something when you fly them outside of your home, right?

Like so rainbows are sometimes associated with like leprechauns and pots of gold. And if you fly a rainbow flag outside of your home, that's a pride symbol. Like that signifies LGBT, either identity or solidarity, and it is understood as such. So the fact that a rainbow can mean other things in other contexts does not mean that a rainbow flag is not generally understood as a pride flag. And like that seems obviously true here, even if this flag had some very, very long, distant history of use in non-J6 MAGA Christian nationalism message making. And so it just seems preposterous to me that anyone is claiming otherwise. And though we know he's not going to do it, we should be talking about recusal here.

Actually, I'm going to be really honest. I'm going to tip my hand here. I think we should be talking about recusal. Actually, I'm going to be really honest. I'm going to tip my hand here. I think we should be talking about impeachment. I'm not naive enough to suggest that that's even on the table. But if Thurgood Marshall had spent the summer of 1972 getting a black power tattoo on his upper bicep, I don't think he would have been a justice for very long. And then walking around like Arundel County with it. What if Fox News got a hold of, I don't know, Katonji Brown Jackson flying a BLM flag? Oh, right. Over. Goodbye. Right? Right. He shouldn't be on the court. I mean, this is like true, true, like, fuck you energy. Like, I mean, it's just like he knows that there is no accountability.

The chief justice isn't going to do anything. Congress isn't going to impeach him. He's not going to be removed from office. He's in the seat for life. And he knows it. And he's just going to do what he wants. That observation, Melissa, just says something deep about the psychology of doing this, right? Like, it is – I really am.

So assume that maybe Martha Ann does hoist the upside-down flag. He hasn't said anything like that about the appeal to heaven flag. What animates doing that? Do you think no one's going to notice or is it really the ultimate display of you can't? Yeah. No one can touch me. Of owning the libs. Imperious sort of display that it reflects is just I just kind of can't get my head around it But he thinks no one's gonna check them personally Institutionally and right now we're all proving him right well But Leah and I wrote this op-ed in the LA Times about Justice Alito about a year ago when he was like all of a dither about like how everyone is disrespecting them and it really felt like He had big King energy like, you know, the divine right of Kings

No one's supposed to criticize me like no one's supposed to criticize me, no one's supposed to prophecy against me or whatever. And it's the same kind of thing. I can do whatever I want and I can do it even as the court on which I sit is hearing cases that relate directly to the subject matter that is implicated by these flags. So as Melissa and I talked about last episode, and I think we've talked about before, you know, it's no secret that it seems like Alito and Thomas want Trump to win so that they can retire under Trump and be replaced by a bunch of 30-year-old men's rights activists, you know, appeal to heaven. Andrew Tate for the court, and right,

Andrew Tate for the Supreme Court, that would be or not outside the realm of possibility. Aspiring Andrew Tate, Josh Hawley, maybe more plausibly. So Trump, after we recorded the last episode, actually explicitly spoke about appointing young justices to the court. So let's play that clip here. Then I called up my people and I said, I have a guy from New York who's an incredible lawyer, he's got the right temperament, he'd be a really great judge. Oh, good, sir. How old is he? I said, he's 69, sir. So he's going to be there for two, three, four years. We like people when they're 30, so they're there for 50 years or 40 years. And as soon as they said that, I realized, yeah,

they're exactly right. So clearly, they're thinking about going as young as possible. Fetuses. Right. Alito and Thomas are definitely going to retire. I agree with that. Although, I texted you guys when the second Jodi Kendra story broke, second of, I don't know how long the series is ultimately going to be. I don't know how many houses the Alitos have. This might be it, but they've, I'm sure, got cars. Do they have a boat? Who knows? Anyway. I mean, it's too bad Google Street View

can't see into their closets because I want to know what other color robes he's housing. Hats. Gotta be a red one. Yep, yep, yep. I want the robes.

Is there a white one in there? I've got questions. Text messages, wall hangings. Oh, God. You're spicy today, Leah. But I had this notion that maybe it's not retirement so much as a resignation from the court in order to serve if Trump wins as the attorney general slash White House counsel in a Trump – in a second Trump term. And I feel like Sam Alito might be interested in doing that.

Jonathan Mitchell would die. He would personally prosecute me for existing. And then I would be left begging brett kavanaugh to save me from jail and this is this is fate this is truly horrifying to contemplate appealing yeah to save us all right that's where we might be cool right the bottom line is he's flying flags letting his freak flag fly over all his houses and you know what's going to happen freak flags freak flags we knew that we knew it was a plural And you know what's going to happen? Freak flags. Freak flags. We knew that. We knew it was a plural.

But you know what's going to happen? Abso-fucking-nothing. Nothing. And that's why he's going to keep doing it. Because as Sheree Whitfield said, who going to check me, boo? Nobody. Nobody's going to check him unless the voters check him. And again, there are a lot of people out there who don't seem to realize the court's

in the balance here, but whatever. People don't, but I think the optimist in me is saying they are realizing it more. And if the Democrats keep talking about it more, that hopefully will land. So, you know, sending that message out into the ether. You know who's also sending messages out into the ether? The justices. they're all on the speaking circuit. Ah, yes, that's true. And not just the Alito household. Justice Thomas has been sending messages out into the ether. He spoke recently at the 11th Circuit Judicial Conference where he was interviewed by his former law clerk, now Florida District Judge Catherine Mazzell. She is the one, if the name sounds familiar, who invalidated the mask mandate applicable to transportation hubs on airplanes,

things like that. Justice Thomas, in his interview with Judge Mazzel, had some takes. Let's give some highlights. So first, he wanted you to know that he gets free vacations from billionaires because people are mean to him. So, quote, especially in Washington, people pride themselves in being awful. It's a hideous place, as far as I'm concerned, because the rest of the country, it's one of the reasons we like RVing. You get to be around regular people who don't pride themselves in doing harmful things merely because they have the capacity to do it. End quote. So question, is getting free RVs from billionaires or free PJ trips from billionaires a better or worse response to people being mean to you than flying

an election denialism pro coup flag it's a tough call tough call i don't know leah okay well we might run a poll also i just have to say if dc is so hideous like you have an option here which is you could pull a david suitor and step down Clarence, although it may be that the PJ invitations would evaporate if you're no longer sitting on the Supreme Court. And that might be a disincentive to doing that. But the option is there. Justice Thomas also had some thoughts on his press coverage more generally. He had this to say, quote, My wife and I, the last two or three years, just the nastiness and the lies.

There's certainly been a lot of negativity in our lives, my wife and I, over the last two or three years, just the nastiness and the lies. There's certainly been a lot of negativity in our lives, my wife and I, over the last few years, but we choose not to focus on it, end quote. I mean, what to say here? What is the nastiness exactly? Being hauled before Congress to testify about sending text messages to the White House counsel during an interrupted coup? Is that nastiness? I mean, who's to say? Apparently. We can only assume that with all of this nastiness, the Thomases decided with some restraint not to fly an upside down flag at their house. But the Alitos, the Alitos, no such restraint there. They're just over the edge, over it. NBC News reported that Justice Thomas has also said, quote,

They don't bomb you necessarily, but they bomb your reputation or your good name or your honor. And that's not a crime, but they can do as much harm that way. End quote. These are deep takes, deep, deep takes. Not to be outdone, Brett Kavanaugh spoke at the Fifth Circuit Judicial Conference, where NBC reports that he opined on how, quote, court decisions unpopular in their time later can become part of the fabric of American constitutional law. Close quote. I mean, keep telling yourself that, Brett. I mean, I suppose it's better than the venting that we saw from Justice Thomas. But if that's what you're telling yourself, Brett, about the way your opinions are going to stand

the test of time, I feel like I got news for you. I think that's actually more insidious. That's a more insidious comment because this whole court has been on a year-long campaign to reframe Dobbs as the heir to Brown versus Board of Education. The bad decision is Roe in the same way Plessy was the bad decision. And Dobbs merely corrected the error that Roe created. And those who object to Dobbs are no better than the segregationists who objected to or tried to resist Brown. The Chief Justice did this in his 2022 year end report. And now he is doing it like just the Dobbs Brown comparison is bullshit. And they are the Warren court standing firm against public outcry.

This is just, we Dobbs critics are the, you know, impeach Earl Warren. The segregation. Yeah, exactly. So,

yep. Yep. There's a through line on all throughout. There is. And of course, as a fellow pick me boy of the Supreme Court, Justice Alito also went out on the town and he needed some applause and validation. So he delivered the commencement address at Franciscan University of Steubenville, a school that Alito as a speaker, the president mentioned Alito's opinion in Dobbs and Alito got a standing ovation, which you know is all he wants in life. Alito reportedly offered the graduates some advice, which included, quote, the need to be rigorous and disciplined in identifying the things that are really fundamental, end quote. Like rights. Right. He also emphasized, relatedly, the importance of, quote, holding fast

to traditions, end quote. Basically, Sam Alito walked at a commencement address so Harrison Butker could run. Okay, let's do a lightning round on the other opinions the court gave us in addition to the voting case that we talked about at the top of the show. And then we'll move on to our interview. First up in the Coinbase case, a unanimous Jackson opinion. The court held that if parties sign two contracts, one of which sends disputes to arbitration and the other to courts, courts will decide which contracts provisions govern. The court also released an opinion in Brown slash Jackson versus United States. This was an Alito opinion in an ACCA Armed Career Criminal Act matter, another not good indication. The issue

in the case was whether a prior conviction counts as a controlled substance offense for purposes of ACCA's enhancement. And the court said whether a prior conviction counts depends on whether the substance was listed as a controlled substance at the time of the state conviction. That is, if the federal government reclassifies a substance as not a controlled substance, your conviction involving that substance can still increase the time in prison that a federal court can impose on you. Justice Jackson dissented with Justice Kagan and Justice Gorsuch in part. There is also a decision in Harrow v. Department of Defense where the court held that a filing

deadline is non-jurisdictional. It does not affect the court's power to hear the case, so if a party doesn't raise the other party's noncompliance with the filing deadline, it's probably no obstacle to the court hearing the case. And that case arose out of protections for federal employees. A federal employee may challenge an adverse personnel action before the Merit Systems Protection Board and can appeal any ruling to the Court of Appeals for the federal circuit within 60 days. The court held that that 60-day deadline is not jurisdictional. This was a short, unanimous Kagan opinion. So she has now had four opinions.

Justice Sotomayor has now had five. Free tip based on this case, Harrow, to incoming law clerks. Statutory requirements like filing deadlines are basically never jurisdictional, so don't say that they are. The Supreme Court also decided Smith v. Spazieri. This was another unanimous opinion, this one by Justice Sotomayor, which held that a stay of proceedings in federal court is warranted when a party requests arbitration of the claims under the arbitration has concluded. Skoda said that Section 3 doesn't permit a court to dismiss the case instead of issuing a stay when the dispute is subject to arbitration and a party requests a stay pending that arbitration. All right, we're going to take a break. But when we return, we will have more in our homage to Justice Alito and everything that he has done to make America great again. Joining us for the next segment is Shefali Luthra of the 19th, who will be discussing with us her new book, Undue Burden, Life and Death Decisions in Post-Roe America.

And if there's something in this part of the podcast that made you laugh, giggle, cringe in fear, well, make sure to subscribe to Strict Scrutiny and share us with your friends. We really appreciate your support. We are delighted to be joined by Shefali Luthra for a conversation about her important new book, Undue Burden, Life and Death Decisions in Post-Roe America. Shefali is an award-winning health policy reporter covering the intersection of gender and healthcare for The 19th, an independent and indispensable nonprofit news organization reporting on gender, politics, law, and policy, many of the things that we at Strict Scrutiny care most about. She's also written for The New York Times, The Washington Post, and NPR, as well as other outlets. So Shefali, welcome to the

pod. Thank you so much for having me. So Shefali, we wanted to have you on the pod to talk about your terrific new book, which is this incredibly well-reported and sobering look at the on-the-ground reality of pregnancy and of trying to end a pregnancy in this post-Roe world we now inhabit. And we have talked on the show a lot about the cataclysmic impact of The End of Roe, but the book gives real texture and detail through a number of riveting and enraging stories that really help explain what it means on the ground to be pregnant and to be considering or trying to end a pregnancy across the country. So maybe let's begin with a general question. And this is something you say right at the beginning of the book.

You describe The End of Roe as a public health crisis, and I very much agree that it is. And you also say it's one for which the country was profoundly unprepared. And I wanted to ask you to elaborate a little bit on this. So in what ways was the country unprepared? And, you know, maybe more importantly, why? This was not something that a lot of quarters did not see coming. So we told you, we told them it was going to happen. And to your point, I think if we look back two years ago, or even prior to that, there had been so many clues, not just in the long term, but in the quite short term that Roe was about to be overturned. There was SB8 being allowed to take effect in Texas. There were the oral arguments of the Dobbs decision, in which it seemed quite clear that there were the votes to overturn Roe. And then there was the leak in May that showed us exactly what the court was going to write, how they were going to overturn this decision. And what was so striking to me was that for whatever reason, people in

Washington who I spoke to didn't seem to be able to fully grapple with what that could mean. And when we came then to that day at the end of June 2022, when Roe was overturned, suddenly abortion bans began taking effect. What I remember hearing from clinicians across the country was just absolute chaos. They had done their best, even with very little support, to try and plan to build out new systems where they would have to send people across multiple state lines, try and find ways to provide care that they had for a long time been doing in person. And there just isn't really a good way to game that out, to think about how am I going to send someone from Texas to Kansas or from Louisiana to Illinois or from, say, South Carolina to North Carolina and ultimately to Virginia? These are just very complex questions that you can't fully prepare for, and certainly not when

you aren't given the reasoning to treat this as a public health crisis. And one thing that I do think if we go back and look at the politics of this prior to the Dobbs decision, this really was treated as a footnote as sort of a niche concern. People really thought this only affected women, maybe only mattered to feminists. And what we have seen over and over again since then is that the end of Roe, the rise of abortion bans has had widespread implications. And I can think of so many people I spoke to who didn't think that this would affect them until suddenly it did because they were pregnant. And once they learned how important this was, they couldn't think of anything else more meaningful and more, I mean, to them just disheartening to learn how little

it felt like their country thought of them. So Shefali, I think you're being entirely too generous in your description of the lack of preparation. You know, you're focusing on just the months before the fall of Roe with Dobbs. But I think the signs have been there for at least a decade. And if you weren't clued in when Donald Trump got elected after promising to appoint justices who would overrule Roe versus Wade, you really lost the plot. But the chaos that you speak of, I think no one was really prepared for that. And I think you're exactly right that many people across the United States did not understand how thoroughly abortion care could impact even those individuals who are not necessarily seeking abortions. And so the book really provides a lens through which to think about that question. You tell a number of stories from all around the country, places like Texas and Arizona and Oklahoma and Florida and New York. So it's a true compendium of red, blue, and purple states.

And the stories encompass a range of individuals who experience abortion and the need for an abortion in very different ways. So there are those who are doing self-managed abortions with medication in their home states. There are those who have to travel out of state for abortion care and have the means to do so. There are also those who are forced to carry pregnancies to term against their will because they cannot access abortion at all. And so we'd like to focus on a few of them here. And I'd like to invite you to tell us a little bit about the story of Tiffany, or

Tiff, as you call her in the book, who is the young woman from Texas, Houston, actually, who became pregnant just before the fall of Roe. But during that period of time, that interregnum, where Texas had effectively banned abortion through the use of its bounty hunter law, SB-8. Tiff's story is one that I just think about so much. And I want to say, I think she is a remarkably resilient person. She has been through so much. And when I spoke with her, you know, even a few days ago, talking about the publication of this book, she is so full of hope for what she can achieve, even in the face of all that she has had to endure. She became pregnant soon after SB8 took effect. She could not get an abortion. She was younger than 18.

She knew that she wanted to terminate her pregnancy. She wanted to get her GED. She wanted to think about going to college, to build some kind of career, to someday have a kid. But that wasn't an option for her. She did not know anyone who could help her find an abortion. Her parents would never have a kid. But that wasn't an option for her. She did not know anyone who could help her find an abortion. Her parents would never have supported that. That was something she knew. And as a minor in Texas, it already was incredibly difficult to get an abortion. You needed parental consent or you needed a judge to say that you were mature enough that you could override the

parental consent requirement. She didn't know any of that. And so instead, she waited, tried to pretend that she wasn't pregnant. She tried to take herbs that someone recommended might end the pregnancy. None of it worked. And instead, she had a really medically tough pregnancy. She has a history of depression. She was hospitalized for depression during her pregnancy. When she actually gave birth, she was near preeclampsia. And that was really terrifying for her. But what's most important to me is where she is now. She has a kid. She is a young woman. She is of age. She is trying to find work. She got her GED. And she has big dreams for herself. She wants to someday move from her small town into Houston, you know, have enough money to raise her son, be a better parent to him than she feels like she maybe could be. But it's just so incredibly hard for her. And when you look at the numbers, the economics, what she would need

to earn to give her son all that she wants to, it is going to be a very long, very hard journey for her. And one that she didn't have a lot of control be a very long, very hard journey for her and one that she didn't have a lot of control over because she really had no options left for her when she became pregnant. One thing I thought was really helpful, there are so many kind of threads to the TIF story, but the overlay of even the restrictions that persist after states have made it virtually impossible to access abortion. You know, some have purported to leave a sliver of time

between detecting a pregnancy and a prohibition, like a six-week ban. In theory, there's maybe a week or two in which some people might find out they're pregnant and technically access abortion. But when you overlay to TRIP requirements or for a minor parental consent or a judicial bypass, that puts even that, like, sliver of possibility way out of reach for most people. And so I think that was really illuminating the way even, you know, those old restrictions that were passed prior to the bigger bans overlay with the newer ones. And I thought that in Tiff's case, that was really clear, but it was clear in a bunch of others where people might have windows

of an ability to access within, you know, even six weeks or 12 weeks. But many, many things put the, you know, real ability to access that care totally out of reach. There's another factor as well there, which is you have to know about all of these laws and know how to navigate them. Tiff didn't know about organizations that might help her with judicial bypass until she was well past six weeks. And just not only being able to navigate all these rules to make it within the very, very short timeline, but to figure out how to find the resources and do so in a way that is discreet because of the stigma around abortion. It just is functionally impossible, especially for someone as vulnerable as she was. And there are so many other stories.

We're not going to have time to bring all of them out. But I wanted to invite you to maybe talk for a minute or two about Jasper, who's a trans man in Florida who navigates accessing abortion. And the story really resonated, I think, both because it is important, obviously, to center real stories of trans men, non-binary people who can become pregnant and need to access abortion, but also because it was so wrenching because Jasper is able to access abortion in Florida. But of course, that would not have been the case today because the total ban has gone into effect. So can you talk a little bit about that? That is such an important point. If the six-week ban in Florida were in effect when Jasper got pregnant, it would have been too late. He didn't find out until he was pushing 15 weeks. And that isn't surprising because he did not have a lot of the symptoms

of pregnancy or could not at least place them to pregnancy. Doctors didn't think to test for it because he's trans. By the time he found out, he had one week to make his two appointments, to decide that he wanted an abortion, to find the money to get that done. And one thing that he has really told me a lot about was that was a really difficult decision. He knew he did not want to be a parent, but he wanted to at least think about it, to give himself a chance to really know that he had done the right thing for him, to feel at peace with what he was about to do, because for a lot of people, this is a decision they take very seriously. Even with 15 weeks, he did not have that luxury. If it had been a six-week ban, he absolutely would not have. His only options would have been to travel out of state to try and find the money to get to, they talked about going to Las Vegas if they would have to, do something like that, which is difficult under the best of circumstances, even more when way, and this is implicit in what you said at the

beginning, abortion bans in states like Texas and other states have, you know, massive cascading effects in other states. So can you talk a little bit about some examples of that? Just the way in which any notion that, you know, restricting access to abortion in one state was going to just be cordoned off and affect only the population in that state and not have these ripple effects elsewhere. And in fact, of course, the effects elsewhere and everywhere are massive. I think about this in the short term and the long term. And these are two points I've tried to examine in the book. The short term is what we already see in states like Illinois, like Kansas, like we will soon see in Virginia, which is when you have this many people from so many states traveling to get abortions, it creates a real bottleneck. It means you have incredibly long

wait times for appointments. Even if you live in a state where abortion is legal, your ability to access it is so much harder. Physicians don't have time to provide other kinds of health care, whether that is colposcopies or pap smears or gender-affirming care, because there just aren't enough health care providers to meet that incredible demand that is now being concentrated in a handful of states. The long-term effect that I also think is really important is what this means for medical training. And what we know is when you are in a state with an abortion ban, it is impossible to be trained in providing abortion. This is important not only because doctors should know how to provide all kinds of health care, but because the regimen for an abortion is the same as for miscarriage management.

And I've spoken to so many doctors, so many med students, so many residents, and some of their stories are in the book, about how afraid they are of what that means for the long term, because eventually we will just not have as many providers in states across the country who know how to deal with something as common as pregnancy loss. And that has implications for all of us because it is so common, whether or not you ever intend to seek an abortion. So this is a really important point, Shefali. We've talked about this on the podcast before, you know, just because you live in a blue state, you are not immunized from the impact of Dobbs. As you say, there will be bottlenecks, even in those blue states as more and more demand for abortion gets cascaded out

into areas where it is accessible. And as you just suggested, there is a real scarcity of suppliers, people who can provide abortions at this time. And the book underscores this in really stark ways. Like not only is abortion healthcare, it's healthcare that's been increasingly stigmatized that already created some pressure on the availability of providers. But it's also now very much cleaved off from other forms of health care, whether that's from abortion providers in hospitals or in standalone clinics. So there's this clear need for abortion providers. As you note, there is going to be a real scarcity, certainly in those red states where abortions are prohibited and professionals cannot be trained to provide them. What will happen as we move into this post-Roe landscape where the prospect of a nationwide ban, I think is very much a reality. Like it could very much happen

if there is a Trump administration, certainly through the Comstock Act. How will that affect the availability of providers and the provision of not just abortion care, but abortion care in service of other forms of health care that are really as necessary, like miscarriage management and things like that? The implications would be drastic. We have seen repeatedly that health care providers are afraid now to provide abortions or to

provide other miscarriage management services, especially when they live in a state with a ban. I mean, we have seen providers in blue states as well and purple states who are afraid to make public that they offer abortion because of targeted harassment, because of stigma, because sometimes the bank won't loan you the money or the rental company won't want to work with you because you provide abortions. When you add a national ban on top of that, it exacerbates the stigma. And it also gives doctors far less reason to feel safe, legally protected when they provide this service that is so essential. And what it means is there is a real risk that we look across the country under a national abortion ban. And if you want comprehensive,

safe, fully adequate medical care for your pregnancy, the best options are Canada or Mexico. I actually spoke with an OBGYN. And one of the things she really fears about the prospect of a nationwide ban, a Trump presidency where the Comstock Act is being used as an effective nationwide ban is that many people aren't going to go into obstetrics and gynecology just because so much of that practice does involve the provision of abortions, like not just for elective abortions or quote unquote elective abortions, but because miscarriages are just so, so common, like, you know, one in three women has had a miscarriage. And if you can't provide that with any sort of security that you're not going to use your

license, you might as well not be in that business. And obstetrics and gynecology already had the highest rate of malpractice suits. The insurance rates were highest for that particular area of medical practice. And they really worry that you are going to have a real reduction in the available number of OBGYNs and quote unquote, women's care going forward because of all of this. So that I think is, you know, cannot be overstated. And you do a really great job in the book of sort of teasing out some of these other ancillary effects. Can we talk a little bit, though, about this question of medical expertise and the way these new abortion bans are being enacted? Because you

also make the point in the book that the laws that we now are living under, the laws that are popping up post-Dobbs, haven't been passed in the way that normal legislation might be passed, with consultation from experts in the field and with, you know, real evidence behind them. Before Dobbs, it might have been the case that many legislatures would write these laws, but they never expected them to go into effect because they would be immediately challenged and joined while their constitutionality was being reviewed. But now post Dobbs, they're very much going to be in effect, but you still don't have the evidence-backed, expertise-backed enactment process that you might have in other areas. So given your reporting, what does it suggest about these new vaguely worded laws that

don't have a lot of expertise behind them and how they are influencing the practice of medicine. It means that the consequences are just so wide ranging in ways that lawmakers, maybe it's not fair to say they were unintended, but they certainly did not anticipate. And I mean, one of the great examples is ectopic pregnancies. I mean, most abortion bans, especially when enacted, did not have ectopic pregnancy exceptions. Some of those have been added in, but in very complicated ways. In Texas, there's this affirmative defense requirement, for instance, in which you can provide an abortion for someone with an ectopic pregnancy, but the doctor could still be sued and would just have to be able to prove that they did it under the statutory exception. That's a really, really difficult thing to ask of a physician. It makes it much harder to

feel safe providing care that they know is medically necessary. And this is a symptom of exactly what you just mentioned, Melissa, the passing of laws in a way that wasn't really treated as serious because no one thought these would take effect. And it is also because of something else, which is a decades long campaign to demonize abortion providers and healthcare providers in particular. Because for a lot of anti-abortion activists, that was a much more politically successful strategy than trying to go after pregnant patients. They could suggest that healthcare providers were taking advantage of these pregnant people

and doing something that they knew was wrong or that patients didn't actually want. And I mean, that bears consequences. It means that these are health care providers with extensive medical training, with a lot of knowledge, who aren't treated with the seriousness that their training and their expertise would suggest they deserve. Yeah, that explanation, I think, suggests correctly that in terms of the legislative motivations, it's kind of a mix of both inadvertence slash incompetence and drafting, but then also malevolence, like actual desire to make it as difficult as possible for this category of physicians to provide meaningful care and that that's quite deliberate, that they are targeted and, you know, creating this kind of fear of criminality around everything they do

was actually not inadvertent, but that may be the point. So I wanted to actually ask a different question, which is that one thing that came through in a lot of the stories that you tell is that people who did want to find a way to get access to medication because they detected their pregnancies early, so they wanted to terminate using medication, had a hard time figuring out how to do that by just searching online, right? We talked about TIF, but with a bunch of your other subjects, people really are struggling to figure out how to do that by just searching online, right? We talked about TIFF, but with a bunch of your other subjects, people really are struggling to figure out how to access these pills. Some people fail or, you know, give up or the pregnancies have progressed too far by the time they figure out how to get access to medication. Others do manage to get pills mailed to them or to another state, but then route the pills to themselves. So just like, can you give

us a sense of the landscape? Like, are there information gaps? How do people right now manage to find the best information online about how to access medication to at-home self-manage abortion if they find out they're pregnant early enough that that's a realistic possibility? I think what we're speaking about is a real symptom of the fact that for abortion, but I mean, for all healthcare, you don't think about it until you have to like, I am not going to wake up tomorrow thinking about someday I'll need a colonoscopy. Like that's just not something that's on my mind, because it shouldn't have to be. And so when you become pregnant, and when you realize you might need an abortion, you have never had to think before about where to find plan C pills or Adaxes or other healthcare

providers that might be willing to send you pills. And the information is now out there, much more so than when it was right after the Dobbs decision. But you still have to know what to be Googling, how to figure out what is reputable and what is not. You need to know someone who knows something. And that's really difficult when we are talking about something that is, as we have discussed, just so stigmatized. One data point that I find so striking is the mailing of medication abortion, the telehealth is accounting for a much larger share of abortions now than it was even a year ago. But at the same time, there are really incredible racial gaps. For instance, white people are much more likely to be ordering medication abortion pills through these services than are Black people or Latina people. And that's so stark because most abortions historically have been for people of color. What it shows is that these are still relatively new services, and we are still seeing what it will take for them to be made fully

available and for people to learn how best to access them and how to feel safe legally as well in using them. But no, I think it's a nice point that aid access and plan C, these are outlets that maybe in the immediate post-ops moment, which you're reporting kind of spans some time period, were harder to access or not didn't pop up immediately with a Google search, but that ideally those should be now higher up when people run searches. There was one other point on medication abortion I wanted to make, which seems relevant in light of the pending challenge to Mifepristone that the Supreme Court is sitting on, which is, I think, only one of the stories you tell, but correct me if I'm wrong, involves someone, you know, so medication abortion

typically involves a two-drug protocol, but you can terminate a pregnancy using just the second drug, right, misoprostol. And there had been some thought that if this challenge to mifepristone partly or totally succeeded, doctors could still continue to provide access to and people could still use the second drug to terminate pregnancies. But we sort of know that that often can be a more difficult and painful process. And you tell a story of a pretty agonizing, ultimately successful, but agonizing experience just using the second drug. So do you want to say anything about that? So actually, there are two cases in the book, if I remember correctly, who use misoprostol only. One of them, a young woman named Becky in the Valley, it works for her.

She buys the pills, crosses the border to Mexico, brings them home, looks online, figures out how to use them, takes them, and they work after a lot of pain, a lot of bleeding. She is ultimately not pregnant. But there's another woman, Emma, and she tries with misoprostol only, and it doesn't work. She goes through so much pain. She is really miserable. She is bleeding. She then waits and is still pregnant. And she has to go through the whole process all over again with mifepristone as well. And I think that's really important because what we are seeing is people trying to figure out on their own outside of the medical system how to provide this kind of care. And in a case where mifepristone isn't available, being given an option that is incredibly painful, is not the first standard,

best recommended practice, and does work, but doesn't always work. And that is really, really concerning when we think about how you might only have one chance to get an abortion. You take the pills you get, and if they don't work well, you have to find a way to get more or you are having that kid. So Shefali, as we conclude, what do you want readers to take from the book? Obviously, the book is so deeply researched and reported that there's just so much here for the reader to delve into. But ultimately, what are you hoping to inspire with this book? What do you want readers to do with the information that you've given them?

I want people to really understand just how ubiquitous the impact of abortion bans can be. I think it is very easy, depending on what state you live in, depending on your gender, your future pregnancy plans, to believe that this is something that will have tremendous consequences for other people, but not for you. And what I hope this book shows is that something like overturning Roe is just so, so tremendous that it will someday affect your life, whether you anticipate it or not. And it is on all of us to treat this as an incredibly serious public health issue and to respond appropriately. The universality of abortion bans, not just for red state folks, blue state folks, it will affect you too.

The book is called, once again, Undue Burden, Life and Death Decisions in Post-Roe America. And the author is Shefali Luthra. Shefali, thank you so much for joining us today. Listeners, please pick up a copy of Undue Burden wherever you get your books and at one of our special places, bookshop.org. Thank you both so much. This was really, really fun. Some housekeeping matters.

In the next episode of Crooked's subscriber-exclusive show Inside 2024, John Legend tickles the ivories, which is what we call making John laugh. The EGOT winner joins Jon Favreau to talk about the power of celebrity political endorsements. Give yourself the green light, a green flag, to sign up for access today. Head on over to crooked.com slash friends or subscribe to Crooked's Friends of the Pod on Apple Podcasts. And guess what, folks? We have some new strict scrutiny merchandise just in time for the upcoming bad opinion season.

That's right. We have new shirts that say time for some bad decisions because that is something that we like to say when the court does something totally off the wall. Not just the Supreme Court, any court, including the court down in South Florida where Judge Cannon seems to have indefinitely delayed Trump's case in Florida because she's either tired of doing her job or she really wants to make America great again. Who is to say? Either way, we know we'll probably be saying it's time for some bad decisions a lot more in the coming months, which means that since these justices and judges love making bad decisions, strict scrutiny merchandise is always going to be a good decision. So head over to the

crooked.com store, that's crooked.com forward slash store, and pick up a time for some bad decisions tea or mug for all of the people in your life who are affected by bad decisions. That's basically everybody. Go get them right now. Strict scrutiny is a Crooked Media production hosted and executive produced by Leah Littman, Thank you. Be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.