Strict Scrutiny - Trump’s Parade of Clowns, Idiots, and Creeps

Episode Date: November 18, 2024

Leah, Melissa, and Kate wade through more election fallout, including President-elect Trump’s proposed use of recess appointments to jam his cabinet picks through. Also covered: this week’s SCOTUS arguments, the tryhards auditioning to be Trump Supreme Court nominees, and why everyone should shut up about Justice Sotomayor retiring.   Follow us on Instagram, Threads, and Bluesky

Mr. Chief Justice, please report. 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 necks. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. I'm Lea Whitman. And I'm Kate Shaw.

And just to be clear, we're all still reeling from the results of the presidential election and we are somehow still waiting for results in key congressional races, but we are Supreme Court podcast. The Supreme Court has been at work, which means that we have two. So here's what we have in store for you on today's episode. KS First up, a few dabs of court culture and breaking news. That will include covering the ongoing auditions for the role of America's next SCOTUS justice, as well as the fire hose of appointments news that we've been handed, as well as a few other things. And then we're going to recap the November sitting.

But first, let's turn to the auditions. Leah? Well, with the Trump 2.0 administration on the horizon, the auditions have begun for those ambitious individuals seeking Supreme Court nominations. And specifically, within one week of the election, one Judge Jim Ho decided to just get out there and say, you know what, that whole birthright citizenship thing, it might be wrong. And since there was no pending case in which he could opine on the topic, he offered these

views in an interview with the Vala conspiracy, specifically conducted by law professor Josh Blackman. And he proclaimed in that interview that maybe just for funsies, as my 12-year-old would say, there's no entitlement to birthright citizenship in, quote, case of war and invasion. That is, an invading, occupying army that gave birth to children. Those children might not have a claim to birthright citizenship. that is an invading occupying army that gave birth to children, those children might not have a claim to birthright citizenship. But then he proceeded to apply this rule to quote, the children of invading aliens and quote who he likens to be clear to an invading occupying army.

This claim is upside down, ridiculous, gross, and not remorseless serious. It is theater, but this is the kind of law, that's air quotes, law, that gets you a judicial appointment in the Trump administration, or at least you think would get you a judicial appointment in the Trump administration. At an earlier point in time, Judge Ho

had actually defended the Supreme Court's decision on birthright citizenship, Wong Kim Ark. That was way back in 2011. Obviously, that had to change or at least be ridiculously manipulated so as to grease the wheels for the Trump administration to treat the children of unauthorized migrants as non-citizens. But he didn't stop there.

He also found a case in which he could offer up some views. He released an opinion where he wrote separately to decry how, quote, our culture increasingly accepts, if not celebrates, racism against whites, end quote. He is working hard for that money. And that was one quote, but there were a number of similar utterances throughout the opinion. It's all over. It's a lot, but we're not going to subject you to all of it. So shifting from Judge Ho, who got an early start in the competition for America's next Supreme Court justice, and maybe he does have an early lead, but not everyone.

Early days, Kate. Anything could happen. Anything could happen. Anything could happen. Things are moving very quickly. We don't know just how bad it could get, although we're beginning to get a sense. But specifically on the Supreme Court nominee front, not everyone is conceding that Ho

has won the race just yet. So Judge Justin Walker on the DC Circuit decided to ask whether the government could say that courts couldn't reopen final January 6th cases. Let's play that clip here. I wonder, you know, there's been, and I'm expressing no opinion of whether this is a good thing or bad thing. But there's been talk in the news that there could be a reconsideration of the January 6th prosecutions if there's a new administration. Let's imagine that that is the case.

Would it be appropriate for the US Attorney's Office under orders from the Attorney General to file a Rule 48A motion in all closed January 6 cases that are post-appeal and tell the district court you have no discretion whether to dismiss these cases. To be clear, this was not a January 6 case. This was just a case in which someone had to get a word in edgewise about the J6ers,

and Justin Walker was there to do it. So those are the stakes of who will be America's next top Supreme Court justice. But we actually have some real justices who are on the bench, and folks have some things to say about them. So in the bucket of more of this bullshit, I bring to you this. As the Democrats do their election postmortems,

some folks are reprising an argument that we heard earlier this year. And that, of course, is the argument for Justice Sonia Sotomayor to resign her seat so that President Biden might replace her with a younger liberal because Republicans always play fair and RBG and Amy Coney Barrett and obviously right, of course. Again, are we really doing this again some more? Apparently. I get the anxiety around all of this.

But one, Justice Sotomayor is not the same as Justice Ginsburg. Justice Sotomayor is 70 and is a type 1 diabetic, which she has been since she was a child. But Justice Ginsburg was an 81-year-old three-time cancer survivor. Just not the same and not fair, I think, to treat them the same. Also, has anyone looked around at the Senate? In what world do you think that newly

independent Joe Manchin and nominally Democrat Kristin Zinema will vote for the chosen SS replacement, even if the Republicans would actually allow that nominee to have a hearing and a floor vote as they prepare for the regime change. Well, and just to pipe in here, like this ship has sailed. Right? Yes. Like we have less than two months, right? Or about two months before the Trump administration takes over, there are all of the lower court nominees

who have already been nominated. They need to be confirmed now. And yes, Democrats control the Senate, but just do that, right? Like if Justice Sotomayor was going to retire, it would have already happened. Maybe it already should have happened. But like, again, that's over.

Focusing on that now is just not productive. No, there's no way she would get through and it would eat up all of the Senate floor time so that none of the lower court judges, which we should say there has been movement this week. They actually have gotten a couple of judges confirmed, but they really do need to stay very, very focused on it to get through the backlog. So those are very real practical concerns.

But since I wasn't on the podcast last week and couldn't register my own grievances about the election, I'm going to take this opportunity to go deep. Let me tell you where I am. Yes, I hear all of you people singing this particular chorus. And I recognize that the court being hopelessly in balance for the foreseeable future is your Roman empire. But if that was the case, then why didn't you really, really do the work of convincing folks to vote on the court and not the price of eggs?

And I just want to point out, over 50% of white women voted for Donald Trump. Over 50% of white women literally could not give a fuck about the court when it was go time. And so you're going to have to miss me with this new logic about how one Latina is going to give up her job to save us all. Because if this was so important, somebody needed to have stepped the fuck up like two weeks ago.

And that is where I'm ending this rant. Thank you. You can continue the rant. We got your rant last week. So if you've got more to do, let it out. Again, yeah, I feel like we're going to be working this out for a while. So you should know it at any point. I love how you told people that I left the country last week. That's true. Like, Jesus.

That was a good idea. Yeah, it was. Yeah, it was just a weekend away. It was pre-planned before we knew that the regime change was happening. But FYI, I did not enjoy my time abroad because I was just really sad. Sorry.

OK, even more an addendum to the calls for Justice Sotomayor to retire is the even stranger calls for President Biden to nominate, wait for it, Vice President Kamala Harris to Justice Sotomayor's seat. I don't even know where to begin with that, so I'm just going to state it and stipulate it as ridiculous. It's a weird thing that Democrats do. Do you remember there was a minute when folks were trying to get Obama

to put Hillary Clinton on the Supreme Court? Yes. It's like, you know what? Here's a gift, right? A consolation prize for losing a significant election. You get a lifetime seat on the Supreme Court. What? What? Um, so no, although I have to say I do find kind of amusing the sort of related suggestion that Biden should resign to give Harris the chance to be the 47th president for a couple of months purely for the petty ass reason that doing so would force Trump world to ditch all of their

47 gear and start afresh with 48 because she would be the 47th president. Shouldn't do it for that reason. Not a good idea on the merits, but I do kind of like the pettiness of the suggestion. And since we are in the mode of finding joy where we can, I thought I would share it. You know what? Joe Biden is a Scorpio and they are a petty, petty people. So I think this probably did get a fresh. I want to see more evidence of that. No, he's a petty person, I think. I'm not mad at it either.

I think this probably got a good airing. There were good reasons not to, but I'm pretty sure this got a good airing. He was much too gracious and insufficiently petty in my view when Trump visited the White House for their fireside chat last week. That's true. I did want to see a little more petty, but he's been petty elsewhere. Like, yes, with the White House press corps, like he's pretty petty with Peter Doocy a couple of times. That's true. I appreciate it. More of that, more of that lame duck energy, Joe Biden.

Leaving aside those halcyon dreams of Kamala Harris as Supreme Court Justice, Sotomayor in retirement, let's focus on the Trump nomination. So as we all begin to prepare for Trump the sequel, bigger, better, wetter, there has been some trickling information about who is actually going to staff this next administration. And we've also learned that president-elect Trump has developed a newfound interest in recess appointments. So let's start there. Should we explain what recess appointments are?

Sure. So a couple of constitutional provisions are relevant here. Article 2, Section 2 provides that the president shall have power to fill up all vacancies that may happen during the recess of the Senate by granting commissions which shall expire at the end of their next session. So you can make a recess appointment,

and it can be good up to a little under two years. So there is a possibility that is a thing that has happened actually the Supreme Court until a few years ago had never weighed In on this sort of obscure provision of the Constitution Did hold in a very fractured opinion that the president does have the power to make appointments and that they don't just have to Be in the big recess between congressional sessions, but actually can happen during recesses that arise during a congressional term. But the recesses have to be not super short. So there's like a 10 days-ish kind of limit that's set forth in the Breyer opinion for the court. So it's a case called Noell Canning.

So that's kind of the background. Presidents can make recess appointments. That was a very divided opinion by a very different court. And so there are some questions about the current status of that opinion. But for sure, presidents have under current Supreme Court president, some power to make recess appointments. So bypass the Senate and put people in directly for a limited term. Okay. So that's the reason. Can they fill their entire cabinet with recess appointments? Well, okay. Let's get to other possible limits on these recess appointments before we go to the nuclear option.

Well, this is another nuclear option too, right? So this is a separate provision, also in Article II, but this is the next section, Section 3, that says the president, there's the part about he gives Congress information on the state of the union, he recommends measures to them, and then in language that has not really ever been tested, the Constitution provides, quote, he may, and that's the president,

on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper. Okay, so we are hearing, and this is actually a thing that Trump floated even during the first Trump

administration, that he may make recess appointments of members of his cabinet and that he actually may, if the Senate won't agree to go into recess voluntarily, seek to use this really never-used constitutional power to force an adjournment and then treat that adjournment as a recess during which he can make recess appointments, maybe up to and including his entire cabinet, and we will detail who is in that potential cabinet in a minute. But that is the background and it's all being floated

and I find it an unbelievably terrifying possibility. What do you- Stairs in the Reichstag fire, right? Well, different ways to undermine the legislative body seems to be a thing that aspiring autocrats seek to do. One is by suspending them entirely, but I guess like I want to be clear that this would require the consent or assent of the Republican House or Republican Senate because this never before tested adjournment power only kicks in in case of disagreement between them. So that means one of the two bodies, either the House or the Senate, would have to vote to adjourn in order to allow the president

to make these recess appointments or right, both would do it and allow the president to make these recess appointments. But the point is it would require the Republican majorities and Republican parties agreement in this fascistic scheme. Seems likely. Yeah, no, he's obviously asking them to bend the knee and they've always done it before, right? So like, it's very possible they will do so again. And a part of me

does think that this request for recess appointments, as well as some of the possible nominations that he's already floated that we'll talk about in a bit, they are some weird kind of loyalty test to see how far his party will go, right? Like what can he get them to agree to and if he can get them to agree to this I mean what on earth are they not going to agree with and it just seems like this prospect of Recess appointments coupled with all of the nominees is just flooding the zone with shit It is impossible to digest how insane any one of these things are when all of them are happening at the same time. The day when we first got the trickle of official announcements of nominations, I feel like halfway through,

I was already feeling exhausted. It's just so much. Again, this is how they do it and get away with it is just overwhelming everyone else with all of this BS. And the aggressiveness is so striking because these would be hearings that would happen after the new Congress is sworn on January 3rd. So he's going to be controlling the Senate. He controls the Senate and not even by small margins. He's going to have a significant Senate majority. And what I don't know, but I strongly suspect

that in at least the modern era, recess appointments used to be something that presidents would use because, you know, back in ye olde days when transportation took a while and senators were far flung, if you needed to get somebody installed on an expedited basis to do an important job, you could get them in without waiting for the Senate to return and confirm the person. That is the purpose. Everybody agrees, originally. So maybe there were some cross-partisan recess

appointments back in the day. But in modern days, it has really just been used, maybe if there's an emergency, but also if there's some difficulty getting the party that controls the Senate to confirm your nominee if you're the president because it's not your party. And the idea that he would have this much trouble, that he would anticipate having this much trouble, getting confirmation votes on his cabinet from his party in the Senate just, I think, both speaks to how deranged these nominations are, but also to Leah's point that this is just maybe a power play, that this is designed to induce a radical set of concessions in the first, it's not even the first hours, we're in like negative 11 weeks of the Trump

term and already requiring them to genuflect in this kind of debased way by saying like, we will recess and you can just put all your people in. It seems like pretty clear evidence that we are in absolute worst case scenario, terrain already again, minus 11 weeks in. Well, it's kind of like a game of chicken with John Thune specifically. So Thune is going to be the incoming Senate majority leader.

And yeah, I think he's a very conservative guy, but he's not necessarily a Trump loyalist. And I think this is sort of like, are you going to get in line, friend? And are you going to bring this entire caucus with you? And all of this stuff is crazy, but this is a gauge. How much am I going to be able to get away with? Yeah. And just going back to the Supreme Court's

interpretations of the recess appointment power in the Noel Canning decision that Kate mentioned a little bit ago, it was, as she noted, very divided. And in the Justice Scalia separate writing that was joined by Chief Justice Roberts, Thomas, and Alito, they said that the recess appointment power applied only to those vacancies that, quote,

happen during the recess, i.e. vacancies that arise during the recess, not vacancies, right, that existed before or after the recess, which is kind of what appointing your entire cabinet during an entirely orchestrated recess would do. And again, I'm not saying that these justices are going to be consistent, but I do think this is just part of asking

all of the Republican party to get in line and genuflect and bend the knee as they have done to date with Trump. So it seems the Constitution is actually a suicide pact. Yes. Last week I definitely said, I think that we can still it seems the Constitution is actually a suicide pact. Last week I definitely said, Aliyah, I think that we can still fight for the Constitution, which I still think in general terms is right.

And I do not want to relinquish. Were you out here being Pollyanna again while I was gone? I mean, no. We were in a dark place. I was not, I don't think, being Pollyanna-ish. I wasn't willing to say that we're strapping it. She wasn't willing to give up. On the Constitution, and at least on sort of its broad principles.

And I mean, I will say two things. One, I think it is pretty clear that this power to adjourn turns on the existence of extraordinary occasions, which I think applies to both convening and adjourning. And so I think that there's no facial way to suggest that this whatever scheme satisfies those constitutional conditions. And yet I'm not in any way going to predict even if the court somehow got this case in front of it that the court would either be consistent in terms of

positions they took in Noel Canning, which Lee was just talking about, or in this separate question that they would actually faithfully interpret both the language and the underlying purposes of this provision which in no universe would were ever designed to allow Trump to do something like this. But let's go on to the people that he plans to install in this grand scheme. And then it you know and then it all starts to become clear because even with this incredibly compliant Senate that he's about to have, some of these people might be a bridge too far. I think it's at least possible.

All right. So let's take through the folks, the names that we have gotten and a couple at the outset that actually wouldn't require any Senate involvement and so aren't really involved in the scheme that we were just describing. Trump has announced that he has selected one of his campaign managers, Susie Wiles, to serve as the White House chief of staff. If she does take the position, will be the first woman to serve in that role. It has also been reported that Stephen Miller will play a major role in the West Wing. I think he will be the White House Deputy Chief of Staff for

Operations, which is the position Alyssa Mastromonaco held in the Obama White House, which somehow just makes me so sad that she's going to share that title if this guy actually does that. Sounds like he's going to. So, I mean, he is going to be the architect of the savage immigration policy the administration has already suggested it will pursue. I expect it to begin very, very quickly. And it's not just, it's not just Pee-wee German, right, who is going to be facilitating these deportations. I have not heard that. I'll be here for the rest of the episode. Wow, I'm so proud of you.

That was great. Also, Donald Trump has indicated he will name Tom Homan as borders czar. Homan as borders are. Homan is, of course, an author of some pieces of Project 2025, who, when he was asked about deportations during the previous Trump administration, said something to the effect of, quote, you ain't seen shit yet. I have to say there's a new documentary called Separated Out, which is based on Jacob Sobov's book and Homan is in it a couple of times, and he is one scary dude.

Oh, god. So we have that to look forward to. So those are the positions that do not require any kind of advice and consent from the Senate. Now on to the ones that do require the Senate to step up. So former New York congressman and one-time New York gubernatorial hopeful Lee Zeldin has been tapped to head the Environmental Protection

Agency. Zeldin has been a member of the so-called climate conservatives in the House of Representatives. He also objects to the Paris Accords, and he has vowed to roll back climate protections that were instituted under the Biden administration. On the upside, it does seem likely

that a Zeldin-run EPA will fare better with this Supreme Court, so. Hashtag winning. Someone's winning. Yeah. Additionally, also from the New York delegation, Congresswoman Elise Stefanik will be nominated ambassador to the United Nations.

This was a position that was formally held by Nikki Haley in the first Trump administration. And I'm just, I know two is not a very large sample size, but it does seem like a good place to put your women is in the United Nations or abroad. Who cares if women are dying in parking lots? You can always be UN ambassador and that is progress. Ladies, you've come a long way, baby.

You might also be able to head the Department of Homeland Security because we are hearing that South Dakota Governor Kristi Noem is being floated to head that department. Also pretty scary. Well, it's just going to the dogs, honestly. being floated to head that department. Also pretty scary. Well, it's just going to the dogs, honestly. Right, exactly. Like scary for the dogs as well as everyone else. Like when-

They're killing the dogs! They're killing the cats! Donald Trump was like literally screaming about people eating the dogs, right? Who knew he would appoint a puppy killer to his cabinet? It turns out there is so much projection that the campaign in the last few years in MAGA land has been engaged in and the cabinet really just makes all of that very clear.

Another announced nomination, former Arkansas governor Mike Huckabee, will be the ambassador to Israel. Let the rapture begin. I don't even know what to say about that. Florida Senator Marco Rubio, who once rude Trump's influence on the country and the Republican Party and the United States standing in the world order, has recanted all of that and has been tapped for Secretary of State. So yes, you can come back from anything.

We've also got reports that Donald Trump will nominate Pete Hegseth for the Secretary of Defense. I don't want to understate how wild this is by merely describing him as an anti-vaxxer Fox News host, but that is accurate. He will be leading the most powerful bureaucracy in the American government. He also doesn't the most powerful bureaucracy in the American government. He also doesn't wash his hands after going to the bathroom or so

he once said on Fox. Like this is going to be a pretty pro-germ administration as we'll get to later. He also was like shilling for ammo last summer, like helping to market it. He has urged, he did urge the president to pardon people who were convicted of market it. He has urged, he did urge the president to pardon people who were convicted of war crimes. He has called for a declaration of war against the woke military, by which he seems to mean people of color and women in the military.

This is in his recently released book. And it's not just people outside of government who might think he's a little nutty. He was also ordered to stand down from President Biden's inauguration because of his extreme views like he kind of failed a background check. And this is again, the Secretary of Defense. I'm still back on Fox News host, right? Because our former roadie and MSNBC news host, Chris Hayes, would have been great as defense secretary

in a Harris administration. I just wanna put that out there. The idea that she in the sort of world too, in which she is busily announcing her cabinet appointments, that she would be, just surfing the channels to decide whom to nominate to literal cabinet positions just really, really tells you everything you need to know. But where we are right now, and it's not even remotely

the most alarming biographical detail that he's a Fox News host, not even close. No, exactly. The washing hands was also very disconcerting. That was pretty scary. I don't know, I think that's pretty innocuous compared to, I mean, he pressured Trump to literally pardon war criminals.

Speaking of anti-vaxxers. Not even the most prominent anti-vaxxer in the bunch. After we sat down to record, Politico broke the news that Trump evidently plans to name RFK Jr. to be the Secretary of Health and Human Services, HHS. And that makes me think, you know, we are just not, we knew he was going to do something in the administration, like we knew that. But we thought he surely will just stick him somewhere in a czar position in the White House that is not going to involve any kind of public scrutiny or a real public facing position. And the announcement that he wants to put him in the cabinet, I think only increases the likelihood that he actually is going to pursue this bananas adjournment scheme because I can't imagine a Senate confirming RFK Jr. Even as Roger Severino thinking right now. Oh, I mean, he didn't depase himself enough in order to get to this post.

Roger Severino is, he was the author of the chapter on HHS in Project 2025. And I think people were thinking maybe he would be nominated as secretary. Now, of course, Donald Trump is going to cycle through all of these people ad nauseum, right? So he'll probably get a chance, chance within one Scaramucci or two, who knows?

Or maybe floating RFK Jr. is a way of clearing the way for someone like Roger Severino, who maybe has less personal baggage, but their views are also quite extreme. It would be difficult to top putting an anti-vaxxer in charge of the agency, in charge of developing vaccines. I mean, this will literally, literally kill people.

And it's like, oh, all you woke people care about, you know, kids and getting measles and mumps and it's like, what? This is Ellie Mustole's whole theory behind all of this, like literally flood the zone with absolute crap, make it as crazy and as extreme as possible. And then when you put in the smart, but extreme people, everyone's like, okay, that's plausible. He went to Harvard Law School. Yeah. I mean, that could be, but shall we get to the piece de resistance of the nominees? Of the nominations, which we have so far held off on,

even speaking about. As someone who was raised in the sunshine state, I feel like I'm supposed to be proud of this in some way, but y'all, what kind of world are we living in when literally Florida man can be nominated to be attorney general of these United States? Yes, that is exactly right. Florida man Matt Gaetz has been nominated

to be the attorney general. And I'm just going to say it. It raised some eyebrows. I was talking about this with some students who were expressing, I don't know, imposter syndrome or nerves about law school. And I tried to put a positive spin on this by saying, look at the comeback story America has right now.

A guy who was under investigation by DOJ for sex trafficking, or at least a target of an investigation, will now lead the department. Is this the most progressive administration on offender reentry in history? Rehabilitation, second chances. I love it. Quite possibly. We are literally making a guy who is like, if a frat paddle was made a real boy with Botox injections, that guy's gonna lead DOJ.

That's our attorney general. I'll be here again for the entire episode. Frat Paddle is a real boy. Wow. You are at a 12, and I appreciate that because I'm still- Trying to get to 13. It's my lucky number. I love it.

Wow. Trying to get to 13 is my lucky number. I love it. Gates, I think, is the most reviled member of a Congress that includes Ted Cruz. I do. Not just like he is to the House, what Cruz is to the Senate. I think he is hated more by his colleagues even than Cruz is by his colleagues. I think the Senate hates him too. Isn't that what Republican Max Miller said? He basically said that on TV. Well, I think it's, I, maybe I'm quoting him. I think I am just channeling what my general understanding is.

And I mean, the list of horrifying things about Matt Gaetz is so long and yet there's no way to talk Frank Paddle turned real boy, so I won't try. But I will note that Gates among other things he has not been a particularly productive legislator but he did make time to introduce legislation to protect J sixers so you know there go those cases literally every one of these appointments feels like the Hunger Games cannon for like a part of the federal government. Like boom, there goes HHS. Like boom, DOJ is about to be dead, et cetera, et cetera. Even Susan Collins was a little bit alarmed.

So Senator Susan Collins of Maine weighed in on the Gets nomination and she had this to say, quote, I was shocked by the announcement. This shows why the advice and consent process is so important. And I'm sure that there will be a lot of questions raised at his hearing. Obviously, the president has the right

to nominate whomever he wishes. But I'm certain that there will be a lot of questions," end quote. Who's going to tell her? Ask those questions, girl. I'm sure it'll turn out great. I mean, this is what he was promising, right? None of you people should be surprised.

This is just ridiculous. And I think the best case scenario we can all hope for is that an attorney general, Matt Gates, spends all of his time seeking justice for Peanut the Squirrel instead of doing- Why do you constantly erase the raccoon? The raccoon was also euthanized. Justice for the raccoon. I'm sorry. Fred. Peanut the Squirrel and Fred the raccoon. The raccoon was also euthanized. Like justice for the raccoon.

I'm sorry. Fred. Okay. Peanut the squirrel and Fred the raccoon, right? Like if that is how he occupies his time, like maybe we will survive. I also would just like to utter a sentence if you will humor me for a little. You can read into the sentence, whatever you will. There is a possibility that one Matt Gaetz is going to have a recess appointment. It might make him happy. Our sex past in chief has decided he doesn't need consent.

You know what? Wow. You've really just ruined the playground for everyone. Sorry. Sorry. All right. This might actually top Matt Gaetz or AG. It's hard.

Former Democrat Tulsi Gabbard has been nominated to be director of national intelligence. I'm just going to leave that out there. And in addition to that, we have a new agency-ish department. Who is to say? No, no, no. We are to say as law professors, there is no agency that Donald Trump can just make. There is no department either. No. To make a department of government efficiency. Sorry, I cut you off, Melissa. What is the thing that Trump is pretending he's doing and then can release debunk that? We'll get to the real law part of it. But for now, a concept of a plan has been made

into two real boys because Elon Musk and Vivek Ramaswamy have been tapped to lead the nascent Department of Government efficiency, which interestingly is not in the government and is not a department and may not have any power, but also might. Unclear. But also its abbreviation is D-O-G-E. Like doge. Doge, you're right, exactly. So I'm sure it's mascot is gonna be the doge too.

Like this is gonna be sick. Clutch up ladies, like we've got the Doge too. This is gonna be sick. Clutch up ladies, like we've got a Doge now. Kate, do you know what we're talking about? I don't, I don't. I thought Doge is a kind of crypto. I thought it was about giving free advertising to Elon's like one of his crypto projects. Just Google it, just Google it.

But it's also, I think, about promoting Do Doge which is actually named a kind of cryptocurrency. What is the Doge that you talked about? Could also be that too. Well it's just more like you know grift. All I can get in Doge is Dogecoin and the new fucking department Doge. Oh it's just a Shibaimu dog. It's cute. Is this the Doge you guys were talking about? It became kind of like an Elon Musk thing for a certain period of time. I don't even know how to describe its origin story.

It's sometimes impossible to wind like a meme back. So I might have just missed it forever. Yeah, exactly. Okay, thanks for trying. I actually, I mean, I'm actually surprised, Kate, that you had the crypto at the ready. I thought you were gonna say, I'm obviously the leader of Venice, the Doge, and I'm glad you were in the century.

Yeah, Dogecoin, apparently a kind of crypto. Don't sleep on Kate Shaw. Just on memes, you can sleep on me on those. But back to what we were saying at the outset, it's just I really think it's important for people covering this to not call it a department even though Trump is calling it a department and obviously you know he wants us to say Doge. But it'll be a committee, it's going to make recommendations, it's going to exist outside of government, maybe there'll be some kind of White House entity that the president has the authority to create. But a department is created

by statute, by act of Congress. He cannot force a recess and make a department while they are adjourned. That's not how any of this works. Maybe he will try this gambit to make the appointment. But he is clearly trying to seize all the power. And I really think it's important that just even rhetorically, we are not all capitulating in that effort. And I actually think in a subtle way, his assertion that he has made a department is part of that project, and it's important to resist it. It's basically a faculty committee,

and we all know how they work. This is a curriculum reform committee. Exactly. Basically. Elon Musk and Vivek Ramaswamy are now associate deans. I do love that. Ass deans. I'm glad we have each other.

Okay. Yeah. So maybe in light of these, I think we need to recalibrate our expectations for Supreme Court nominations. Like I think we need to recalibrate our expectations for Supreme Court nominations. I think Judge Ho is really underperforming in the race to be as out there as you need to be for a nomination in the Trump 2.0 administration.

I think justices Cannon and Kazmiric are looking way more plausible. Can't rule out a Justice Josh Blackmon or maybe Jonathan Mitchell. You know, I think if the Department of Education is allowed to continue to exist, maybe Chris Ruffo as Secretary of Education, Bill Ackman, I mean, again, can't rule these out. I guess like one note about a possibility on the Gates nomination in particular, one note about a possibility on the Gates nomination in particular.

We talked about different theories for why these nominations might be the way they are. But on Gates in particular, the House Ethics Committee was apparently going to vote on releasing a report described as highly damaging by Jake Sherman at Punchbowl two days after Gates was nominated to be attorney general and resigned from Congress such that the committee no longer has jurisdiction over him.

And I think it's a question about, was this an excuse to resign? And he might not get confirmed, but clear the way for someone else. I mean, I don't know, but there's just a lot going on here. I hope the clear the way theory is right. I think that anything that keeps Matt Gates out of the Department of Justice

would be a great development.. I think that anything that keeps Matt Gaetz out of the Department of Justice would be a great development. But I think that that's. No, I'm not. Yeah, again, it might be like, hey, this is an added benefit. Let's shoot for the moon as well. Why not both? Can I offer a hot take? Yes.

What if Matt Gaetz is actually the perfect person to be AG just because it would just be very difficult for him to get anything done. Anyone who came after him who was actually plausible would probably be smart enough to do some real damage. I just think he is going to be an absolutely willing and subservient attack dog. I think he will go after critics.

I think he will be. All of them would, though. Yeah, no, that might be right. He's beyond shame and caring. And I think that there are people who are on the list who would do evil things, but actually might care somewhat about the views of the existing folks at DOJ.

And I just don't think Gates would. Oh, God, Kate. Kate. I do. No, Kate. Again, it might be that in the best case situation, we are hoping for a world where malevolence is tempered by incompetence, to borrow the words of Ben Whittes and Quinta

Jurisdic of Lawfare. I think that that was some of what they talked about during the Trump 1.0 administration. But again, that is literally scraping the barrel for any- Bookmark this. We might have to come back to maybe Matt Gaetz was a silver lining. Yeah. We'll see. Okay. this, we might have to come back to maybe Matt Gaetz was a silver lining. Yeah, we'll see. Anyway, that's what's happening in the executive department, the real one, as it were.

Let's turn to the judiciary and do some court culture for real for real. OK? What's going on, Kate? Briefly, some news out of Louisiana, where a district court judge enjoined a state law that would have required public schools to display the Ten Commandments in classrooms.

Louisiana was the first state in nearly 40 years to enact a mandate on religious displays in schools. The law would have taken effect in January of 2025 and was widely and I think correctly viewed as an effort to tee up a challenge to Engel versus Vittal, which is the 1962 Supreme Court decision that prohibited prayer in public schools on the ground that it violated the separation of church and state, which is a thing that used to exist. It violated the separation of church and state, which is a thing that used to exist. In that decision, Judge John D. Gravels, who is an Obama appointee, wrote that the law was, quote,

coercive to students and for all practical purposes. They cannot opt out of viewing the Ten Commandments when they are displayed in every classroom, every day of the year, every year of their education, end quote. Sounds like a problem for church and state, if that were a thing. Yeah. The decision was not unexpected given existing precedent,

but it does invite a battle over the future of said precedents, a battle that will surely end at the Supreme Court. The next step for the case is the Fifth Circuit, so what could go wrong? Now time for some recaps? Sure. Right. OK.

Can I just like, time out, time out. I had such a hard time getting into these cases. Like, I know they matter to lots of people. And I mean, like, geez Louise. I think the justices kind of did too. Yeah. I think that, look, the cases are important. But again, when you're comparing them

to having Matt Gaetz running DOJ and Robert F. Kennedy Jr. running HHS, one thing is going to draw a little bit more attention and concern than the other. And I don't think that is unreasonable. So while we were out of the country, someone asked me, what do you think the scariest part of Project 2025 is?

And literally, the only thing I could think of was that it's just the first 180 days. Yeah. Yep. That's the scariest part. It's just literally half a year. Yeah. There's more.

OK, so to the cases. Focus. Yeah. To the cases. OK, so to the cases. Focus. Yeah. To the cases the court heard last week, one was Velazquez versus Garland. The case arises out of the fact that non-citizens who are present in the United States unlawfully and facing deportation can request what is called voluntary departure

instead of a removal order under certain circumstances, if that is granted. An individual who follows the court's directive will not be subject to the usual repercussions of a removal order under certain circumstances. If that is granted, an individual who follows the court's directive will not be subject to the usual repercussions of deportation. Instead, they might potentially be able to return to the United States more quickly with proper sponsorship,

but they must leave the country voluntarily within the period directed. And if they do not, they can be subject to steep fines and be barred from returning to the United States for up to 10 years. So what happens when a non-citizen's voluntary departure period ends on a weekend or a public holiday, and instead of leaving the country,

the non-citizen files a motion to reopen the process on the next business day? Well, the 10th Circuit has held that regardless of what day of the week a voluntary departure period expires, the law requires a noncitizen moving to reopen or reconsider removal proceedings to file within the calendar day period set in the voluntary departure order. That holding, however, conflicted with a 2012 Ninth Circuit decision holding that when a noncitizen's deadline for voluntary departure falls on a weekend or a holiday, the noncitizen has until the next business

day to file their post-decision motion to reopen or to reconsider. And this case, Velazquez v. Garland, gives the court the opportunity to resolve that circuit split. So the petitioner argued that the meaning of the statute has to be consistent with the meaning of other provisions of immigration law and with the practice of immigration authorities, which is that when a deadline falls on a public holiday or a weekend, the departure has to be consistent with the meaning of other provisions of immigration law and with the practice of immigration authorities, which is that when a deadline falls on a public holiday or a weekend, the departure has to happen by the next business day. Sounds sensible. However, the Biden administration

was actually taking a much more hardline approach. And at least a couple of the justices weren't crazy about some of the choices that the government made at oral argument. So let's roll a clip. Because Mana recognizes that reopening and reconsideration can be subject to review. It doesn't say everything. So for instance, take an alien who's a soccer fan and says,

I want I move for reconsideration. I want you to include in your opinion the statement, I'm as good of a soccer player as Lionel Messi. I don't think you should trivialize this case. No, this is actually, and. And how do either one of those things make sense? This is a man who's really trying to like, get the agency to focus on this timeliness determination

that has just arisen in his, in the denial of his motion to reopen. He did what I would think the agency would want him to do. Well, I will say that where this comes from is the text. That is, there's review only of a final order of removal. That's 1252A1. It then goes to Nasrallah, which interpreted final order of removal. Now, our argument in Nasrallah... Okay, that's completely non-responsive to the question that I just asked. I just have to say, Justice Kagan, if you think assistant to the Solicitor General

Yang is unresponsive, just wait until you hear from Solicitor General Sidney Powell or Alina Habba. Release the Kraken. Release the Kraken. It wasn't just Justice Kagan who appeared frustrated with the federal government. Justice Gorsuch, renowned textualist, also had some words. So let's roll that. If it's so obvious, how come you didn't raise it below? That I can't speak to. Neither can I. Again, I just have to imagine what the colloquies and cases are going to look like under a Matt

Gates Department of Justice. I just had this thought. I remember when we had Attorney General Holder on the pod. I think, did we talk about this? There used to be this practice of Attorneys General doing one argument, just because it's a ceremonial thing that's fun to do. practice of attorneys general doing like one argument like you know just because it's a sort of ceremonial thing that's fun to do and it hasn't been you know Holder didn't do it, Lynch didn't do it, Garland didn't do it anyway so. Well Holder said he didn't do it because he was so mad at the court after Shelby County.

Exactly it was not the kind of institution he wanted to appear before you know and have that kind of respectful exchange and there Rosenstein I think even though he was dag, was and then acting was the one person who did in the Trump administration anyway. Can you fucking imagine Matt Gaetz doing a Supreme Court argument? All right. Honestly, would watch. Would watch. I mean and maybe he would do it because he, like Trump, is this kind of seeker of negative attention and would probably do it for that reason because people would a lot of people would hate watch it and maybe he would enjoy that. I would actually love to see Elena Kagan. I would love to see that too. Body him. Yes. I'm slightly concerned she would just spontaneously combust instead. Also possible. Just like, cannot compute. Right, exactly. Like. All right, back to Velasquez for just a minute.

There, you know, on the substance, a lot of the argument was spent when not pummeling the federal government, discussing whether the court or courts had jurisdiction to hear these cases at all, which hadn't actually been raised below and was only kind of glancingly raised in the briefing before the court.

So there was some talk of maybe sending the case back down, which is becoming something of a theme this term, which honestly I'm fine with, like do nothing, send it all back. I think that's probably the best we can hope for from these clowns much of the time. Perfect. Stasis. All right. Next case is Delegati versus United States, which involved a mob related murder. But that actually isn't what the case was about. The question in the case was whether a crime that requires proof of bodily injury or death but can be committed by failing to take action has, as an element, the use, attempted use, or threatened use of physical force. So, put simply, has a defendant used physical

force when she hasn't actually done anything. And as in Velazquez, this was definitely a theme of the week. The government took a pretty hardline approach, arguing that even in circumstances involving inaction, the defendant has used or attempted to use physical force. And this prompted some very interesting hypotheticals from the justices. And here is one exchange between Deputy Solicitor General Eric Fagan and Justice Jackson. – Just piggybacking on what Justice Gorsuch is saying, I guess I'm just trying to understand the government's position on what it means to use physical force against the person of another in an omission case.

So let's take this hypothetical. Say you have a lifeguard and she has a duty of care to rescue children in the pool. Um, a kid who she hates, hates, gets into the pool entirely of their own volition. Is it your position that she uses physical force against this kid if she doesn't jump into the water when she sees him drowning? Yes. So Justice Jackson's question generated whatever this was. So we're just going to play that clip here.

I mean, I don't know if she, I guess the pool is probably not deep enough for her to get crushed in it, but it's the gravity is dragging her down in the pool. There's an internal process going on in her body whereby her life is sucked away from her. I apologize, I'm not a doctor. I couldn't quite tell you what happens with asphyxiation, but the body's going to be attacking itself there, gasping for air, eventually die. You know, this description was like very relatable for me this past week. I was like, he's describing sensations that yes, I felt. So I really felt, I empathize with Fagin during this exchange because he was like trying to figure out how exactly to respond to the question and realized he actually, how do

you explain drowning? Like I don't really know. And anyway, he did not do it effectively, although he did speak to something deep in our souls at this moment in time. LS. Right, exactly. Exactly. KS. Thank you for that. LS. Right. You know, as in Velazquez, the federal government had a hard time in this argument as well, although their opening statement was quite confident, as you will hear here. KS. Mr. Fagan. Thank you, Mr. Chief Justice, and may it please the court. It's hard to believe that we're actually here debating whether murder is a crime of violence.

Bold move, Cotton. The last case the court heard in this sitting was NVIDIA Corp vs. E. Oman, J. Orfonder, A.B. And as we discussed in our preview, this case concerns two questions related to the Private Securities Litigation Reform Act, or PSLRA. First question is whether plaintiffs seeking to allege Sienter, which is fraudulent intent under the PSLRA, based on allegations about internal company documents, must plead with particularity the contents of those documents. The second question is whether plaintiffs can plead falsity under the PSLRA by relying on an expert opinion rather than particularized allegations of fact. The case involves Nvidia, which makes computer chips. It is currently the most valuable company in the world.

However, its shareholders contend that in 2017 and 2018, the company's CEO, Jensen Huang, hid the fact that its record revenue growth was being driven by crypto mining rather than by sales for gaming. And the investors say that crypto market volatility made the company's finances more precarious when the market crashed in 2018. So when it enacted the PSLRA in 1995, Congress gave companies certain protections from lawsuits by shareholders.

Specifically, the law requires lawsuits to include key allegations, quote, with particularity, end quote, including details to show that company officials knew they were misleading investors. Here, the investors maintain that their complaint met this standard. Here is Deepak Gupta of Gupta-Wessler,

who argued on behalf of the investors. And he reviewed sales data every week, every month, and in quarterly meetings that one witness described as proctology exams because they were so detailed. The nature of his responses, I think, is critical here. He, as I said earlier, when he was asked by analysts about the crypto demand, he didn't say, you know, we don't know or I don't know. He quantified the statements he was making and he didn't express uncertainty.

He gave very specific figures that again contradicted the data. So NVIDIA argues that the lawsuit's allegations are not pled with particularity, but rather are based heavily on an analysis by an economic consulting firm rather than the factual allegations required under the 1995 statute. NVIDIA also says that shareholders don't have to point to the contents of company documents to bolster claims that Huang's public statements were inconsistent with internal reports. And here is NVIDIA's lawyer, Neil Katyal. Mr. Huang is not running a Ponzi scheme. We're talking about one of the most respected CEOs of a dramatically important company. It does seem that

NVIDIA can count on at least one vote. Let's roll the tape. What motive could he have for making a statement that is so far off and that is if you are correct, if the over a billion dollars figure is correct, is surely going to be going to come to light with severe consequences. That's the argument my friends make, and I think you could have made it. Yeah, well, what's wrong with it? What exactly is wrong with it? I would like to know too, Justice Alito.

What exactly? It wasn't just Justice Alito, though, who seemed sympathetic to NVIDIA's position. The Chief Justice also noted that when Congress enacted the PSLRA, it was with the intent to limit frivolous lawsuits by raising the bar for pleadings in shareholder suits. So not clear where this is going, but it does seem it may be a narrower understanding of what it means to plead with particularity. In other court

related news, Ted Olson, the former Solicitor General, Supreme Court advocate, and a prominent member of the Federalist Society, passed away last Wednesday morning. Olson rose to prominence as the lawyer for George W. Bush in Bush v. Gore, and he later served as Bush's Solicitor General. Although he was a noted conservative, Olson's career took some surprising turns. Alongside David Boies, his one-time adversary in Bush v. Gore, Olsen litigated a challenge to Proposition 8, the 2008 California ballot initiative that withdrew the right to same-sex marriage in that state. After victories in the Northern District of California

and the Ninth Circuit, Olsen and Boies litigated the challenge all the way to the Supreme Court, which dismissed it on standing grounds. And although they did not succeed in obtaining a victory on the merits, that case is widely credited with paving the way for Obergefell versus Hodges, which was decided two years later. Olson's stance on marriage equality was not always well regarded in conservative circles, and as a lifelong Republican, he also provoked conservative ire when he defended Dreamers in the Trump administration's efforts to rescind DACA. He was a very complicated person in that regard. I will just say that I taught with Ted at a couple of seminars in the Aspen Institute

Socrates program and got to know him pretty well. And I will just say at the outset, I was not expecting to like Ted very much, given how different our politics were. But he was just a really lovely, lovely person, very open-minded. We did not always agree on everything. There were certainly moments where I was like, nope, nope, I definitely don't agree with that.

And I'm sure he said the same. But he was really warm and open-minded and open-hearted and spoke so lovingly of his family, his wife, Lady Booth Olsen. And at a time when we just seem like mired in divisions, I kind of miss people like that. I just had one additional thought. Sorry, this is going to be in a totally different tone in register.

Do you think there are gonna be like dead bears around HHS now? Like you're just gonna like walk into HHS. Wow, that's a really big fucking pivot, Leah. I'm sorry. Rest in peace. I just refuse to believe he's going to be the HHS secretary.

I don't feel optimistic about anything. And Gates, I don't know. The rest of them, I'm sure, are going in. But I just feel like there will be some crazy developments that will mean he's not ever walking in the front door of that building. Perhaps it is wishful thinking. It most likely is.

But just be used to it. Okay, well, even if he's not walking in the front door, he still might leave bear carcasses around. Bear carcasses, that's true. The two could both be true. I mean, whale juice in the fridge. I mean. Right.

Speaking of beverages, before we go, I just wanna shout out Tiffany at the Smith in Lincoln Center who is not only a faithful strict scrutiny listener, she makes an excellent Martha Rita. I just wanna shout you out, Tiffany. Thank you so much. You made my Tuesday night and I see you queen. And I appreciate all the salt that you rimmed that glass with because yes, it was salty like its namesake. Thank you. All right. That's all we've got for today. The world keeps spinning and so does the court. And

so do we for now. I should say like like one thing if you want to hear more from us I think we've kind of shifted social media platforms where we are I think all three of us are now primarily Overward bluer skies on blue sky. So my handle is the same at blue sky. I'm just leah litman The podcast is also there That is just strict scrutiny. So you can find. And I'm Kate Shaw.

I had to have a number in my Twitter handle, but I'm just Kate Shaw at Blue Sky. What about you? Are you Prof. Murray? I'm Prof. M. Murray everywhere. That's so nice. Every single place. Love it. Prof. M. Murray. But Blue Sky, the vibes have been good.

I think it feels like, I mean, I'm always a little bit light as a poster. I just dip my toe in occasionally. But I've definitely been checking it and seems really useful. I've been on a social media diet. It's just been hard. Like, Twitter used to give me joy. And now it just makes me sad. And like, I'm trying to get into blue sky. I just I just don't have the heart for it right now. Yeah, that's fair. But I think if you give it a chance, it might give you some joy too. Yeah, you should be patient with yourself. Kate and I, I don't know, I feel like I was emoting really hard last week. And I feel like, I don't know if this was also true for you, Kate. Like I got several messages from people.

Yeah, being like, are you okay? Are you okay? I hope you're doing well. And I was not really able to do much, if anything, last week. So yeah, just be patient, Melissa. Like, we got you, I'm glad you're back, and we'll get you there. What does it say about me that I went away with my husband

to celebrate our 20th anniversary, and I was still so sad, and now I'm back with you guys, and I feel a little better? What does that say? What does that say? It's not, I don't think, yes, but I don't think it's Josh related. I think it's just time does somewhat heal. It is time. It's been a week. It's been a week. It's really fresh. And also like register, you know, I feel like we talked a little bit about this last week, Kate, but, you know,

this is enough to just to make you crazy and beat you down. And there just have to be different ways of coping with it and pushing back and humor and like mocking these absolute unqualified dipshit fascist clowns, right? Like that's sometimes helpful. It is can be cathartic. I've always found it to be more cathartic than the pussyhat person. Yes. Yes. Yeah. One more thing before we go. Are you wondering what comes next? Well,

Stacey Abrams is going to talk with historian Heather Cox Richardson to see how history can guide us forward. Together, they dive into strategies for countering disinformation, harnessing states rights, and how past eras can inspire progress today. Plus, Stacey answers audience questions on getting involved and impacting your community in this post-election environment. Don't give up, get on your pods, and listen to the latest episode of Assembly Required now or you can watch it on YouTube. And for a different take, last week on hysteria, Erin Analisa brought together journalist Erin Haines, activist Julissa Arce, and comedian Megan Galey

to talk post-election. Here are their takes on what it really takes for a woman to become president, to women voting for abortion rights while supporting anti-abortion candidates. They cover it all. And since women are divorcing their MAGA husbands, is it finally time to unfriend your Trump supporting friends? They've got answers. Listen to Hysteria Now or head to their YouTube channel for full episodes and more. All right Kate, send us home. I will. Strict Scrutiny is a

Crooked Media production hosted and executive produced by Leah Lippman, Melissa Murray, and me Kate Shaw. Produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. Audio support from Kyle Seglin and Charlotte Landis, music by Eddie Cooper, production support from Madeleine Herringer and Ari Schwartz. Matt DeGroote is our head of production and thanks to our digital team Phoebe Bradford and Joe Matosky. Subscribe to Strict Scrutiny and YouTube to catch full episodes. Find us at youtube.com slash strict scrutiny podcast. And if you haven't already, 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.