Strict Scrutiny - Will SCOTUS Allow Conversion Therapy for Minors?

Episode Date: October 13, 2025

Leah, Melissa, and Kate are back in business, breaking down this term’s first week of arguments at SCOTUS, including a challenge to Colorado’s ban on conversion therapy for minors. Also covered: the indictment of New York’s Attorney General Letitia James, the continuing legal fights against Trump’s efforts to send the National Guard into Portland and Chicago, and Attorney General Pamela Jo Bondi’s pugnacious testimony before the Senate Judiciary Committee. Then, Kate and Leah speak with Yale Law Professor John Fabian Witt about his book The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America, which chronicles how philanthropist Charles Garland bankrolled progressive causes through his American Fund for Public Service.If you want to learn more about Buck v. Bell (the 1927 case Justice Alito referenced in the Chiles arguments), listen to our deep dive from 2020Favorite things:Leah: Protest videos from Portland and Chicago; The Sentimental Garbage podcast on The Life of a ShowgirlKate: Writers & Lovers by Lily King, Creation Lake by Rachel Kushner; Red Clover Ranch in Wisconsin; wine and cider from Las MujeresMelissa: Vision & Justice; Miss Toy Poodle on InstagramLeah will be in conversation with UCLA Law Professor Rick Hasen at the Hammer Museum in Los Angeles on Tuesday, Oct 14, 2025 at 7:30 PM. Details here. Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad VibesGet tickets to CROOKED CON November 6-7 in Washington, D.C at http://crookedcon.comFollow us on Instagram, Threads, and Bluesky Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

Strict scrutiny is brought to you by Americans United for Separation of Church and State. You don't destroy 250 years of secular democracy without gutting some precedents, shattering some norms, and dropping a few billion. The same people in groups that back Project 2025 are part of a larger shadow network that is relentlessly pushing to impose a Christian nationalist agenda on our lives and our laws. Church state separation is the bulwark blocking their agenda. One of the last bastions of Church State separation is our country. public school system. So they are pushing vouchers everywhere. They are arguing for religious

public schools. Yes, you heard that right. Religious public schools. And they're doing it at the Supreme Court, as we've covered on this podcast. If you're listening to us, you already see the writing on the wall, and you know that we can and we must fight back. Join Americans United for separation of church and state and their growing movement, because church-state separation protects us all. You can learn more and get involved at AU.org slash crooked. Mr. Chief Justice, may it please support. It's an old joke.

When I argued men, 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 asked 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 and the legal culture that surrounds it. We are your hosts for the first segment of today's show. I'm Kate Shaw. I'm Leah Littman.

And I'm Melissa Murray, and the court is back in session, which means we are back in session. However, Article 2 is not slowing down. So before we get into Article 3, we actually have a bunch of other legal developments that we have to talk about as well. So we're going to start with this one, and that is the indictment of New York's Attorney General, Lettisha James. And this is part of a pattern of actions from the administration that we think is inextricably tied to Article 3. So we're going to discuss that. And after we discuss it, we will then recap the court's first week of arguments before turning back to legal news, including developments in the challenges to Trump's deployment of the National Guard to American cities and against Americans, as well as some developments with our girl, Pamela Joe Bondi, showing up and showing out in her appearance before the Senate. It was truly chef's kiss, 10 out of 10, no notes.

actually a lot of notes and I think those will become clear if you stay tuned no good notes how about that so after all of that we are going to bring you a great conversation that Leah and I recently had

with Yale's John Fabian Witt about his fantastic new book which is out tomorrow The Radical Fund the book just to give you a brief snapshot is about how a group of organizers and lawyers and writers and public intellectuals among others

capitalized on actually a relatively small inheritance to largely remake American democracy. And that sounds kind of overstated, but it's honestly not. It is an amazing and genuinely inspiring story that is also set in a very dark time about 100 years ago following a pandemic involving massive economic inequality, political violence. I mean, this all feels very familiar. And yet somehow at the end of this story is a vastly improved American democracy. So given how dark everything is, including the start of this Supreme Court term, we could all use a little inspiration. So stay tuned for that

conversation. And the news of the last week has also just kind of made the general darkness and the start of the Supreme Court term kind of all the more alarming and urgent. So we're going to turn to the news of the week now. So after firing federal prosecutors who refused to seek indictments against Donald Trump's preferred targets and after installing his former personal lawyer who's an insurance lawyer with no prosecutorial experience. in the position, Trump's handpicked U.S. Attorney for the Eastern District of Virginia obtained an indictment against New York Attorney General Tish James. I don't know what's going on with Virginia grand juries. Like, are they gobbling Tylenol? I don't know. Because, right, and the reason I think

Leah is saying this is because in both D.C. and Chicago, we have actually seen a really remarkable string of grand juries returning no bills, like refusing to return indictments, right? L.A. as well on these like literally trumped-up charges that federal prosecutors are bringing before them and yet Virginia seems to be breaking differently. So I think that's why they're going there, right, to be very clear. D.C. would not do this.

The Eastern District of Virginia is a pretty big district that includes parts of the state that include military bases. So I think they rightly assume that it's going to trend a little more conservative. And apparently, you know, you can indict a ham sandwich, And we have. Yeah. And New York's fine attorney general, Tish James. So James, our listeners, may recall, is responsible for New York's state civil litigation against the Trump organization, among other things. And that seems to be pretty clearly why she is being targeted. So like in the lead-up to the indictment of Jim Comey in the same district of Virginia, there have been reports that Trump tried to pressure prosecutors to indict James. And then when career prosecutors were unwilling to do so, Trump installed Lindsey Halligan, his personal lackey, who is an insurance lawyer.

with zero prosecutorial experience, and she swooped in and actually sought and then obtained the indictment. Halligan's is the only name that appears on the James indictment. It also, I mean, this is small, but also maybe so big, misdates James' address as Brooklyn, New Jersey rather than Brooklyn, New York, which is basically like on par with the kind of error that is at the heart of this entire criminal indictment, but the very best people. Well, everything is legal in New Jersey, and she probably knew that, so it's okay. So the indictment is based on allegations of mortgage fraud, a.k.a. the mortgage fraud fraud that the administration is perpetrating. And these allegations are related to James signing a writer to a loan that she used to purchase a home that she stated would not be subject to rental agreement. So she

wasn't planning to rent the property. But the writer does allow for short-term rentals. The indictment doesn't specify how long James allegedly rented out the property. but her tax disclosure suggests that it wasn't very long because that year she disclosed that she received between $1,000 to $5,000 in rent. And the following year, she disclosed that she'd received nothing in rent. So there's a lot of other exculpatory evidence that's available here, which is probably why no self-respecting career lawyer would bring this case. But here we are. Attorney General James, for her part, has issued a statement. And we're going to give you a quick excerpt right here. This is nothing more than a continuation of the president's desperate weaponization

of our justice system. He is forcing federal law enforcement agencies to do his bidding, all because I did my job as the New York State Attorney General. These charges are baseless, and the president's own public statements make clear that his only goal is political retribution at any cost. The president's actions are a grave violation of our constitutional order and have drawn sharp criticism from members of both parties. So to be clear, this is utterly terrifying stuff. It is fundamentally incompatible with the rule of law to have the president and chief

law enforcement officers targeting people because of who they are, because they are the president's critics and political opponents rather than what they did. And honestly, like, what they did here that clearly put James in the crosshairs is upholding the rule of law as attorney general. Federal criminal law is, to be clear, broad and sweeping. And if you look hard enough at anyone, you may be able to unearth a mistake on a loan document. And if you have prosecutors with zero ethics or principle seeking it, you may be able to get a grand jury to hand down an indictment. But none of that is how the rule of law is supposed to work. And we should be able to recognize this, even if the president hadn't accidentally publicly posted what was supposed to be a direct message to his attorney general demanding that she prosecute people that he listed as his political opponent.

He should have used signal. Oh, wait. My bad. Or at least added me to the signal chat if he was going to do so. So there's that. The fact that the administration is willing to use criminal law in this way is yet another reminder about. the apostasy that is the Supreme Court's immunity decision. Robert's majority opinion in that case went out of its way to declare that investigative and prosecutorial decision-making is the

special province of the executive and the Constitution vests the entirety of the executive power and the president and, quote, allegations that the requested investigations were shams or proposed for an improper purpose do not divest the president of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials, end quote. That is a direct quote. Like for all of the talk of Roberts being an institutionalist, his vision of presidential power has enabled the most anti-institutionalist president just to destroy our institutions. And all of those were direct quotes from Trump versus United States.

No editorializing necessary. Anyway, it may be the case that even if the same. Supreme Court had not stepped in with Trump versus United States that this president would still try to use federal criminal law and its enforcement power against his critics. But we just want to put a line under this and make clear that the court's decision in Trump versus United States made it a lot easier for him to do so because now he knows he faces zero liability for doing so because all of the investigative and prosecutorial functions of the Department of Justice are basically all in him and they're all official presidential functions for which he is insulated.

Anyway, with that, let's go on to some other bad decisions. It's bad decision seasons. It actually never ended. This is not like pumpkin spice season. It just goes and goes and goes. Bad decisions. So let's talk about some of the decisions that the court seems poised to issue. And these bad decisions will come with explanations. They might not be sound or convincing explanations, but unlike the shadow docket bad decisions, I guess they have that to recommend them. Anyway, so we are back in the season of argument recaps. The court heard a lot of cases last week after starting its October term, and that means we're not going to be able to go in depth on all of the recaps, but we will at least mention

the cases that were argued, and we will focus our conversation on Childs v. Salazar, which is the challenge to the Colorado law that restricts licensed professional therapist's ability to conduct conversion therapy on their patients. Before the arguments even started, there was reporting that called to mind the lead-up to the court's previous decision in 303 Creative v. Alenis. That was the case about the wedding website designer who didn't want to celebrate same-sex marriages. Specifically, some stories raised serious questions about whether the plaintiffs challenging a Colorado law had standing to do so, both in the lead-up to 303 Creative and now this case, Childs as well. Here's the gist of it. Colorado's

law restricts licensed therapist's ability to offer conversion therapy, which the state defines to mean treatment that is provided in clinical settings that is aimed at altering an individual's behavior. So this would be therapy that involves telling someone who's gay that actually they're attracted to people of the opposite sex or telling someone who is trans and actually they are cis. But the plaintiff and child insists that she doesn't want to change someone's behavior or identity or orientation. At most, she wants to be able to talk about sexual orientation and gender identity, which

she says might include counseling someone to cope with the sexual orientation or gender identity that is causing them stress. So it's not clear that what she wants to do is even prohibited under the statute. That would mean the law wouldn't and couldn't be enforced against her, which would mean she doesn't have standing to challenge the law. But all of that, of course, assumes that the law is real and the court honors and observes it. But really, why let jurisdiction get in the way of a good time if you are poised to ax some state law on an ostensible First Amendment theory? So the plaintiff's lawyers here, the Alliance defending freedom, who are the same team behind 303 Creative v. Alenis, which we were just talking about, says that Colorado's law hurts patients who come in wanting conversion therapy.

Apparently, this is all based on anonymous Reddit posts. Much good evidence is based on anonymous Reddit posts. Most of it, I would even say. But none of those posters actually challenge this law. So that leaves ADF with a therapist whose conduct probably isn't prohibited by the statute, whose challenge. a statute that hasn't been enforced for six years, as Justice Sotomayor pointed out in the oral argument. And basically, the plaintiff standing argument amounts to claiming she is afraid the law will be enforced and that this fear is chilling her conduct. The lawyers also say, but we think the statute does prohibit the conduct she wants to engage in, even though the state insists that it does not.

TLDR, standing is also now for suckers. Because the justices apparently feel free to adjudicate any case seeking to vindicate right-wing culture war. grievances, the court barely engaged with these jurisdictional niceties, aside from justices Gorsuch and Barrett, kind of poo-pooing them. I have to say, I don't know how I'm going to teach standing anymore. I used to teach, like, an array of cases, including Poe v. Olman, which was about a Connecticut contraception ban that wasn't enforced. And I, like, I don't even know what to say anymore. Thanks, guys. Just give them Justice Jackson's descent and diamond alternative energy. That will make it all clear. Yes.

That is an epic dissent. And it does sort of call it like she sees it. Like if they want to like do the substantive constitutional change they want to do, like they will just or advantage the parties they want to advantage, they will find standing. If not, they won't. And we should say that Justice Sotomayor definitely did underscore the lack of standing in this case. But it does not seem as though that's going to be an obstacle to the majority. So they're probably going to reach the merits of this question. And on the merits, it also seems pretty clear that there is going to be a majority and a super majority. and maybe even more than six votes to strike down the law. The justices are probably going to say the Colorado law regulates speech and is such subject to strict scrutiny. At one point in the argument, it seemed like invalidating Colorado's restriction on licensed professional therapist treatment wasn't going to be enough for the right-wing majority on the court. So Justice Barrett floated the prospect of immunizing the therapist plaintiff from medical malpractice suits to. That is, the court could at least in theory say that not only can this law not be enforced against the practice of this extremely damaging and destructive therapy, but therapists maybe can't even be sued by patients for malpractice if they engage in conversion therapy. This had very strong echoes of Barrett's Scrimetti concurrence, where she said even if the Tennessee law in that case did discriminate against trans people, and the court majority actually said it didn't. Even if it did, that would be okay, too.

Interestingly, Charles's lawyer, at least as I read the responses, didn't seem to be biting on this, seemed to be saying we're not really asking for that, for you to extend this protection to the context of malpractice suits. But maybe I'm wrong. Let's at least pretend you're just adjudicating cases here for a second. Totally. Yeah. And that's how bad things have gone. Let me think this is a legitimate enterprise where I'm going to win. Completely.

I actually did not relate it to her Scermetti concurrence where she, gratuitously kind of offered a new theory of equal protection and how we identify suspect classes. I actually thought the whole line of discussion around malpractice suits and the immunization of therapists was very similar to Trump versus United States. Like, you can do whatever. Wild out if you want to and it'll be fine. Like, say whatever you like. Free speech for everybody. But of course, she didn't want to go quite as far as the majority in Trump versus United States. And here she seemed to want to maybe go further. Christian, Christian therapist. Immunity for you.

Remember, I think it's in Sotomayor's dissent. She's like, right, immune, immune, immune. So basically that's what the court is doing now in all kinds of... You get immunity. Exactly. Exactly. The other thing that I will note that I thought was very interesting about this oral argument was how much abortion jurisprudence is seeding all of this chaotic conservative

grievance jurisprudence. So two cases came up. Nifla versus Bacera and then McCullen versus Cochley. I'm just going to talk about NIFLA because it was the one that really occupied a lot of the airtime here, and it framed much of the dispute. So NIFLA was a case decided by the court in 2018, and it was a challenge to a series of California consumer protection laws that required crisis pregnancy centers to inform patients about the availability of abortion care in the state and about state support for abortion care, and to inform the patients that these crisis pregnancy centers were, in fact, unlicensed and didn't offer certain services like. abortion. And that part, I think, warrants some elaboration. The crisis pregnancy centers would often present themselves to the public as facilities where you could get an abortion. And then once a patient went in seeking an abortion, suddenly they would turn on all of these sort of tactics to

try and convince the patient not to terminate the pregnancy and to continue it to term. So these laws were basically aimed at getting crisis pregnancy centers to be transparent about their anti-abortion purposes. And when the laws came before this court, the court's Republican appointees all fell in line and concluded that a state's efforts to require licensees to provide accurate information to consumers about the services they provide, wait for it, violates the First Amendment. I.e., the Republican appointees held that California could not require these professional businesses to inform consumers and customers of simple facts. This case is where the Republican appointees, is where the litigants in Childs v. Salazar begin because the jokes write themselves. And this is also

the case that somewhat weakens some of Colorado's defenses in Childs, because NIFLA limits a state's ability to justify the Colorado law as a regulation of professional speech. In addition to Nifla, there were also echoes of another case also involving both kind of abortion and speech, McCullen v. Cochley. So in that case, the Supreme Court said states can't impose a buffer zone around clinics because doing so violates the First Amendment rights of, quote, sidewalk counselors who are trying to have, this is actually the court's description, quote, quiet conversations with clinic patients to convince them not to terminate their pregnancies. And if you've seen protests outside of abortion clinics, I am sorry, they are not having quiet conversations. Usually don't have to get pardoned when you're having a quiet conversation after. Not usually required.

Not usually. Hmm. Anyways, remember how one Justice Antonin Scalia used to lecture us about how abortion was affecting and perverting other areas of law and how that was bad? Sike. Now, apparently, it's great to frame everything around the court's special jurisprudence created for abortion. And that's exactly what NIFLA was, because in NIFLA, the court said that First Amendment rules regarding mandatory disclosures couldn't just be straightforwardly applied to the California laws in that case. because the law is concerned abortion, which the court described as anything but an uncontroversial topic. So the court's anti-abortion vibes warped First Amendment law, and now that warped First Amendment law is being transported smack dab into anti-LGBT jurisprudence. I love it when a plan comes together. Okay. So to go back to the child's argument, a lot of the discussion in the case centered on whether it mattered that the statute restricted medical treatment being offered by

licensed medical provider. So as Justice Jackson explained, if a state can tell a medical provider, hey, you can't give someone a pill to do this? Why can you offer therapy that is designed to do the same thing? And several justices throughout examples of other restrictions that seem perfectly permissible. Justice Sotomayor said, how about a law that tells dietitians don't encourage anorexic patients to engage in restrictive eating? Or Kagan had an example of a doctor telling you to lower your cholesterol by going out and eating dessert for every meal. So the ADF lawyer, and the federal government wanted to say that it doesn't matter whether this was an in-treatment setting or not. So hold that thought for a moment. What matters here, according to the lawyer,

is whether the law is regulating speech incidental to conduct or speech. But when Justice Jackson asked the lawyer for the federal government, hey, why isn't this regulation like the one in Scermetti, which we upheld, it also restricts a medical treatment that the state says is harmful on the basis of conflicting evidence. The federal government's lawyer said, well, skirmetti was a law that regulated on the basis of age and medical treatment. Huh? Why is one regulating treatment and the other isn't? Why does saying one law regulates treatment insulated from constitutional challenge, but that doesn't work for the other law? Very. Hmm. The idea that any regulation of speech, like divorce from context and divorce from the reason it's being regulated, trigger strict scrutiny or other kind of

scrutiny is just insane? Like, would the justices say courts can't restrict hearsay testimony? Because that's just speech? Like, would they say you can't prohibit perjury? That's just talking? How about prohibiting verbal agreements in restrative trade? How about allowing teachers or professors to penalize students who just shout, fuck you in the class all class long? Why can the state even limit therapy and treatments to licensed therapists? Like, some rando on the internet just wants to talk in that speech too. Like, this theory is just not so. And Sam Alito was very triggered in this argument by people pointing out that conversion therapy is inconsistent with professional standards of care. He went full-on woke lito when people brought this up. He wanted

to try out all of the ways in which the medical profession might have been racist or ablest in the past at one point referring to Oliver Wendell Holmes, infamous line, you know, three generations of imbeciles are enough. He didn't even get that right. He said idiots. I know. He said idiots. But I I attempted to adjust it for him. Exactly. And he used, you know, all of this history to intimate that the court should ignore medical experts and professional standards of care today. I am obsessed with Alito's fixation on Buck v. Bell. That's the case in which Holmes makes his infamous three generations of imbeciles line. He's brought it up a number of times. He hate that decision. I think he has referred to it as one of the worst decisions the court has ever issued. But I want, I'm just like dying for someone to press him with the question of. of what exactly in the Constitution he thinks prevents states from enacting or enforcing compulsory sterilization laws like the one at issue in Buck v. Spel. Like, the Constitution doesn't explet, you know, you might say, well, we have the liberty to decide not to be sterilized against our will by states, but he doesn't believe that there's any content to that liberty except if history and tradition fills that constitutional term. And regrettably, we have a long history and tradition of compulsory sterilization laws.

So on his own professed method, there is not really any basis for courts today to find that those kinds of laws violate the Constitution's liberty guarantees. So I just want someone to demand an explanation from him. Leah? Well, it's liberty for breeders and birthing and nothing else. That's the explanation, I think. Only thing that squares. Well, I'm going to introduce another aspect of this. Listeners, it's time for our very special segment.

We need to talk about Justice Clarence Thomas. there are no new ideas here because I am here to remind you that the invocation of Buck versus Bell is straight out of the Clarence Thomas playbook. I know that Alito loves it too, but I think he got it from Justice Thomas. So in the pre-Dob's salad days when women had rights, Justice Thomas used to trot out Buck v. Bell as evidence that earlier courts routinely used to sanction questionable practices that had since been discredited, like eugenic sterilization and abortion, and And basically, this is Justice Alito, he peeding Justice Thomas. Several justices wanted to say that Colorado's law amounted to viewpoint discrimination

because the law would allow a therapist to help patients accept being gay but not offer to change them into being straight. But again, I come back to that's not why they're allowing one but not the other. One form of treatment is consistent with professional standards of care and medicine. The other is not. But throughout the argument, I thought you could kind of hear the distinctions. with which at least some of the Republican appointees talk about sexual orientation and gender identity. So here, for example, is one Samuel Alito.

If you recall the example that I gave you, I'll give it to you again because I want to contrast it with another situation. So in the first situation, an adolescent male comes to a licensed therapist and says he's attracted to other males, but he feels uneasy and guilty about those feelings. He wants to end or lessen them, and he asks for the therapist help in doing so. The other situation is a similar adolescent male, comes to a licensed therapist as he's attracted to other males, feels uneasy and guilty about those feelings,

and he wants the therapist help so he will feel comfortable as a gay young man. It seems to me your statute dictates opposite results in those two situations based on the viewpoint expressed. One viewpoint is the viewpoint that a minor should be able to obtain talk therapy to overcome same-sex attraction if that's what he or she wants. And the other is the viewpoint that the minor should not be able to obtain talk therapy to overcome same-sex attraction, even if that is what he or she wants. Looks like blatant viewpoint discrimination. It's the, he says, he's a

attracted to other males and he feels guilty and references to same-sex attraction rather than identity that are triggering this for me. Yeah, it didn't make my skin not crawl to hear him. I got some, I think Justice Kagan was very much persuaded by this is viewpoint discrimination. This was my, like, could be more than six. I don't think Jackson or so to my or were, but I think it's possible seven. Yeah, I know, I think so. And I think like she was, approaching the argument by trying to posit another kind of law that Colorado could enact that would do the same thing. So she was suggesting, for example, a prohibition on license medical practitioners doing things that diverge from the standard of care and saying, well, that wouldn't

be viewpoint discrimination. Now, I don't think any of her Republican colleagues or the lawyer for ADF or the federal government would be okay with that law either. But that seemed to to be what she wanted to do and say. So I think there are two ways this case could go. One is sort of the court just with a six to three or a seven to two majority just invalidating the law to sui and it's all over or alternatively. And this was sort of where Justice Sotomayor and Justice Jackson were, I think, trying to sort of salvage something from the shards of this oral argument is focusing on the fact

that the lower court didn't apply the appropriate standard of review, the lower court applied rational basis review. You know, the court here seems to be leaning toward the fact that this is a First Amendment violation, viewpoint discrimination that requires strict scrutiny, even though these are licensed professionals. Don't let that bother you, but strict scrutiny anyway. And then the idea would be that they would have to send it back to the lower courts to do the strict scrutiny analysis. And Justice Jackson at one point said, you know, strict scrutiny isn't always fatal in fact. I think I heard that from one of you all. And I don't know that that's the way this is going to go. But I mean, I think if the court is sort of reading the public, I think there are a lot of

people who are just like, this feels very inconsistent with where you were in terms of skirmat. Yeah. Yeah. I think, you know, Mahmoud points in the other direction, right, points to them just actually both announcing and applying. That's exactly what they did in McMood. Yeah. To strike down the law. But I think that's an astute observation. If they are reading the wins, which I don't see a lot of evidence that they are, but if they are, they could potentially notch a kind of victory in the court of public opinion by appearing to be somewhat restrained in what they do here and just send the case back to the lower court for application of strict scrutiny. A humble, restrained court.

Right. Exactly. The headlines write themselves. Yes. The jokes, too. Strict scrutiny is brought to you by Zbiotics pre-alcohol. Let's face it, after a night of drinks, I don't bounce back the next day the way that I used to.

So I have to make a choice. I can either have a great night or a great next day. that is until I found pre-alcohol. Zbiotics pre-alcohol probiotic drink is the world's first genetically engineered probiotic. It was invented by PhD scientists to tackle rough mornings after drinking, and here's how it works. When you drink, the alcohol in your gut gets converted into a toxic byproduct. It's a buildup of this byproduct, not dehydration. That's to blame for rough days after drinking. Pre-alcohol produces an enzyme that breaks down this byproduct. So just remember to make pre-alcohol your first drink of the night. Drink responsibly, and you will feel your

best the next day. I don't drink that much, but when I do, I use pre-alcohol. Like, for example, I wanted to celebrate Cinco de Mayo. Who doesn't want to celebrate Cinco de Mayo? But I didn't want the 6th of May to be my worst day ever. So I used Zebiotics pre-alcohol, had a great Cinco de Mayo, and a great Sase de Mayo, and that is what I want for all of you. Enjoy your life. Enjoy your friends, but don't pay a price the next day. And fall is here, which means it's time to do all of those things. Enjoy the cooler weather and some drinks out with friends. So whether you're enjoying a pint at a fall festival or a spooky cocktail at a Halloween party, don't forget to drink a pre-alcohol before drinking. You'll all be able to celebrate and still wake up feeling great the next day. Just go to zbiotics.com

slash strict to learn more and get 15% off your first order when you use the code strict at checkout. Zbiotics is backed with a 100% money-back guarantee, so if you're unsatisfied for any reason, they'll refund your money, no questions asked. I wish the Supreme Court had a money-back guarantee like that. Remember to head to Zbiotics.com slash strict and use the code strict at checkout for 15% off. Let's move on. The court also heard oral argument in a case called Bost v. Illinois Department of Elections. This is a case about whether a A Republican political official can challenge an Illinois law that counts ballots that are received after election day.

The official says that this law injures him because it means he has to pay campaign staff for an additional two weeks. So stepping back, the rationale here is that the candidate has to spend extra money, and that sounds like a pocketbook injury, if you will. And the candidate's lawyer also tried to emphasize how great it would be to resolve questions about election rules well in advance of an election. Justice Kavanaugh picked up on this repeatedly like a dog with a bone. Justice Kagan, however, responded to this by noting that the court's existing rules seem to have worked just fine, which, true. But all of this might overlook the swath of completely nutty challenges to laws that allow voting and that expand the franchise that are waiting in the wings. And this seems to be just the first of many of those. And those challenges might get traction in the federal courts today in a way that they would not.

have before. They probably would even have gotten to courts before because they would have been struck down on pre-clearance, at least pre-2013. But now that these challenges are moving forward and the changing composition of the courts, I think it's very likely we'll see more of them and more of these kinds of rationales. And it also just seems strange to say that candidates or officials have a legally cognizable interest in restricting the availability of voting or limiting votes that can be counted. Like, that just doesn't seem like the kind of injury or interest the law would recognize or protect. Like, can Donald Trump walk into court and seek an injunction against the due process clause because it costs money to try his critics? Like, that seems weird. And no, seriously, like,

this relates to a point Justice Kagan made in her foreign aid dissent. You know, the fact that the president didn't think some congressional appropriations were consistent with his view of American values. Like, that was not a cognizable harm. That is a frustration. He has to bear in a system of laws. So, too, right, this is a frustration in a system that is democratic and that wants to count people's votes. A frustration that president has to bear in a system of laws is in the, you know, traditional equitable factors on the shadow dock. It always grounds for presidential victory at this point. I feel like we just have to. Or a trade deficit is actually an emergency always. Yes. And that too. Okay. But again, back to this election case. So the candidate plaintiff

actually did not want standing to depend on whether a particular candidate or official was likely to win in the election at issue or, you know, whether or how these the late arriving ballots might make a difference. The focus was really on this like paying campaign staff for extra time issue. And that meant he actually didn't focus on how Republicans might be the ones injured by counting late arriving ballots. And this because, you know, it's a week starting with a Monday, like also triggered Sam Alito, who was very piqued that there wasn't a. right-wing grievance theory in the case. So you can honestly, like, really hear that here. You have several arguments, and I don't want to get into most of them right now. But on the issue of competitive injury, it's not clear to me why you couldn't have done a lot better than you did in your complaint and alleged what I think a lot of people believe to be true,

which is that loosening the rules for counting votes like this. generally hurts Republican candidates, generally helps Democratic candidates. Why didn't you pursue that? Why didn't you try to do something with that? But getting back to the idea of why the candidate has an interest here, it was a little jarring hearing justices talk about mail-in-voting in terms of injuries related to counting more or less votes. Once again, I give you Samuel Alito. But we're talking about injury, in fact, isn't a smaller margin of victory and injury, in fact? Isn't this like the sort of big he admitted energy that we talked about at the live show? Oh, too much democracy is the injury.

Yeah. Right. At least if you were a Republican candidate. Yes. He admitted energy, like this part of the case called to mine in exchange from a previous decision, Bernovich versus DNC, a Voting Rights Act case from a few years ago where a question from Justice Barrett elicited a response that she didn't really want to hear, namely the Republican Party signaling, like, it had an interest.

in not having votes counted, which you can hear here. So, you know, the DNC had standing, and the district court said that it had standing to challenge the out-of-precinct policy because the policy placed a greater imperative on democratic organizations to educate their voters and because the policy harmed its members who would have voted out-of-precinct. What's the interest of the Arizona RNC here in keeping, say, the out-of-precinct voter ballot disqualification rules on the books? Because it puts us at a competitive disadvantage relative to Democrats. Politics is a zero-sum game. And every extra vote they get through unlawful interpretations of Section 2 hurts us. It's the difference between winning an election 50 to 49 and losing an election. So I'm not feeling great about this case.

It is a standing matter in that context of Republican interest in expansively challenging laws and policies that allow people to vote. But we shall see. Yeah. So let's briefly mention the other cases that the court heard during the first week of the term. One was Villarreal v. Texas, which is a Sixth Amendment right to counsel case about whether a trial court can prohibit a defendant and his counsel from discussing the defendant's testimony during an overnight recess of a trial. Some of the justices, including justices Jackson and Kagan, focused on how the court's prior cases seem to allow trial courts to prohibit discussions about the content of a defendant's testimony, but don't allow them to restrict discussions that might relate to or. rely on inferences about the defendant's testimony, such as whether to take a plea bargain or call another witness. And the defendant here was arguing for a rule that was rooted instead in time. That would say that courts can't restrict overnight discussions about testimony, but can restrict

discussions during daytime recesses, perhaps unless the recess is a certain length. I didn't get the sense that a lot of the justices felt that the line that the defendant was trying to draw made a lot of sense. But I do want to play this one clip because I think it underscores how lawyering in the federal government is going these days. So here we go. Mr. Worthen, I appreciate the subtlety of Texas's position as compared to the Solicitor General's more absolute rule. And I just have a couple of questions about that distinction. Dang, Gina, the state of Texas is taking more nuanced positions than the United States federal government. Ouch. I mean, in this particular case, like Texas is drawing a line between incidental and non-incidental discussions

of testimony, saying that courts can tell lawyers and defendants they can't discuss the testimony as such, but of course can discuss matters related to the testimony, as we described. Whereas the federal government is saying you can't even discuss downstream decisions, such as whether to take a plea deal that are based on or linked to testimony, you can only have those discussions in the abstract. Another argument that was heard last week was in Burke v. Choi. So, hey there, civil procedure, Fed courts hive, it's time to rise because this case is about the Erie Doctrine. Ooh, that felt tingly. The Erie Doctrine is about whether state or federal rules apply when litigants are raising state law claims in federal court. And the specific state

rule here is a state rule that requires expert affidavits to be filed in medical malpractice cases. And the justices were very fixated on how states can address the problem of medical malpractice if the state rule didn't apply. You know what was malpractice? here. The number of times the men's on this court interrupted or cut off Justice Jackson. Also malpractice the way Justice Barrett didn't seem to come back to her earlier stance on immunizing everyone from malpractice suits. Both of those things were the actual malpractice. Yes. For sure. So in eerie cases, the justices asked whether there's a conflict between, you know, the state rule, the state affidavit requirement here and the federal rules of civil procedure. I think it came out

that the justices felt like the vibes of the Delaware affidavit rule were just different than the vibes of the federal rules, since the federal rules create a regime of notice pleading where plaintiffs can file pretty bare bones complaints, whereas the Delaware rule requires more. Some of the justices, the ones with good reading skills, were able to identify more concrete conflicts. As Justice Jackson noted, the Delaware rule would change when a defendant's answer is due. As Justice Kagan noted, the fact that this is labeled as an affidavit shouldn't matter because if the state required you to include as an affidavit, a pleading that went beyond notice pleading. That would be a conflict. I'm not clear who will prevail here, but we will be following. There is also a case called Barrett

versus United States, and I was honestly very surprised to learn that this dispute was not brought by Justice Barrett against American book lovers for refusing to purchase listening to the law. Just kidding. Don't get mad. Listening to the law is a bestseller. I should note, however, though, that the following books have recently ranked ahead of listening to the law on the New York Times bestsellers list. So, History Matters by David McCullough, We the People by Jill Lippoor, Black A.F. History by Michael Harriet. Why Fascists Hate Teachers by Randy Weingarten. The Book of Sheen by Charlie Sheen. And at number one last week, poems and prayers by Matthew McConaughey. All right, all right, all right.

So Barre v. United States actually concerns whether a defendant can receive sentences under two provisions of the Armed Career Criminal Act. This issue was previewed in the court's previous decision in Laura v. United States when the court interpreted the sentencing provisions governing two firearms charges. One of the two sections is 924C, which prohibits using a firearm in connection with a crime of violence or serious drug offense, and 924J, which penalizes using a firearm in the course of violation. violating 924C while causing the death of another person. Okay, so in Laura, the court held that the provision in 924C that requires sentences imposed imposed consecutively rather than concurrently doesn't apply to 924J. The question here in Barrett is whether the federal government can impose punishments under both provisions, so both C and J.

The federal government in this case conceded that they can't, so the court appointed an amicus, Texas attorney John Bash, to defend the position that imposing two punishments would be permissible. So there were several moments early on in the oral argument where it seemed like justices Jackson and Sotomayor were attempting to teach Brett Kavanaugh how double jeopardy works and how it's different than concurrent sentencing. Like, it was honestly kind of painful. Like the question in this case is related to double jeopardy because the presumption that Congress doesn't intend to impose two punishments for the same offense is probably rooted in part in the double jeopardy clause. And you apply double jeopardy decisions to ask if the two subsections are the same

offense. But the question here is about the proper interpretation of the provisions in ACA. Like, it's a statutory interpretation case. And it was a little hard for me to count a five in this case. Justice Jackson and Sotomayor were clearly with petitioner and the federal government. I thought Justice Gorsuch probably was as well. It sounded like Justice Alito and Kavanaugh or the court appointed amicus. If I had to guess, I would probably say ruling for a petitioner and federal government that you can't impose punishments under both provisions. And finally, the court heard U.S. Postal Service versus Conan, which presents a question about the scope of the Federal Tort Claims Act, specifically the postal exception. Under the FTCA, you can sue the federal government for actions

of federal officers unless an exception applies. And here, there is an exception for cases related to the miscarriage or loss of mail. The question in this case is what that means and whether it covers what the plaintiff is suing over here, which includes intentionally not delivering the mail in a campaign of racial harassment that the plaintiff has alleged. Isha Anand from Stanford Supreme Court Clinic argued on behalf of the plaintiff respondent, and per usual, she did a terrific job. Sam Alito wanted to ask about Christmas cards in this case. Black Santa Christmas lists.

Exactly. You know, that was on the tip of his tongue. What if Black Santa had a Christmas list? Exactly. All right. So we are midway through the October sitting. During the sitting, there are a total of 29 argument slots. Eight of those, so we're talking single digits, are women. So probably too many in the eyes of some. But, alas, we have a lot of legal news to cover. Too many women, not enough John's, Peters. What else? Yes. What else we say? There was one, yeah, I guess there was a sitting last year with like more Richards than women or was it Peter. Who can recall? in any event. In addition to everything that's happening at SCOTUS, Article 2 and the lower federal courts continue a pace. They don't just hit pause because SCOTUS is back for a new term. And since our live show in Chicago, we have had some developments in the case out of Oregon about whether Trump can deploy the National Guard to Portland. So an hour before we took the stage for that wonderful live show at the Athenaeam in Chicago, we got the district court's initial opinion restraining Trump's deployment of those troops to Oregon. The opinion concluded that Trump didn't have a factual basis.

for his claim that deploying the military in Portland was necessary to execute federal law. The judge, a Trump appointee, described the claims the administration was offering as untethered from facts. After the ruling and on a platform formerly known as Twitter, like, you know what, I'm never calling it X. Like, is Mama called him Twitter? I'm going to call him Twitter. Stephen Miller accused the judge in the Oregon case, who, again, was appointed by Donald Trump, of engaging in what he called legal insurrection. And he stuck by that claim, set it with his whole chest as he did the rounds on TV. Let's hear a clip. You called a legal ruling legal insurrection. Are you recommending the president take action against judges and rulings and disagree with it? No, it's simply a factually

accurate statement. After Miller accused the judge of legal insurrection, Secretary of War, Pete Hegseth, a phrase that honestly is as least as weird. as Supreme Court Justice, Prith Kavanaugh. Can I say one thing? So it is so insane. But Secretary of Defense, you would abbreviate SACDF, which sounds kind of like tough. Sao is how you abbreviate Secretary of War. Sal Pete Hegsa.

I think there's actually like a tiny sliver of joy in that abbreviation. Sorry, Melissa. I'll take the joy where we can find it. We really have to do that. Issued a memo that redeployed the Texas National Guard to Oregon. So now we're sending one state's military to invade another state against their will, which, I don't know, honestly, is giving civil war vibes, but whatever. And it also seems to be a real inversion of Section 4 of Article 4 of the Constitution, which says, quote, The United States shall protect each of the states against invasion and on application of the legislature or of the executive against domestic violence.

Hmm. Anyways, it turns out the misogyny, probably a hell of a gateway drug to fascism, because this week Politico reported that Trump's nominee to leave the office investigating Jack Smith is, again, reportedly, allegedly recently been investigated for harassing a female subordinate, including by allegedly canceling the woman's reservation at a hotel and then telling her she would be staying with him. Now, the Trump nominee has, I guess, denied this. threatened to sue Politico, but that is the story. All right. So back to the other sort of key domain of the kind of misogyny, fascism, crossover, the administration's decision to redeploy the Texas National Guard to Oregon is really emblematic of this administration's defiance of lower courts. This is what Leah and her co-author, Dan Deacon, call in a forthcoming article, legalistic noncompliance. Basically, the administration again and again loses in court, changes like one tiny little irrelevant fact about what it is doing resumes doing the unlawful thing and insists, no, no, no, we're doing something totally

different, not defying the courts, basically forcing the lower federal courts and litigants to play whack a mole with the federal government. Sounds like the travel ban, honestly. Sure does. Right? I mean, there are no new ideas. Yeah. Here is Stephen Miller talking about compliance or really defiance of.

the Oregon order. Does the administration still plan to abide by that ruling? Well, the administration filed an appeal this morning with the Ninth Circuit. I would note the administration won an identical case in the Ninth Circuit just a few months ago with respect to the federalizing of the California National Guard. Under Title X of the U.S. Code, the president has plenary authority. Has... Stephen?

Stephen? Hey, Stephen, can you hear me? Let's just say the Oregon judge was not impressed with the government's run around here. The judge convened an emergency hearing on Sunday night to determine if the redeployment violated its order. And the judge concluded that the redeployment was also illegal for the very same reasons the initial deployment was unlawful. Namely, that the president had no reason for thinking the National Guard was actually necessary. So it didn't matter if the National Guard was coming from Oregon or Texas. It was entirely superfluous. The judge was really not happy with the government. You know, there was an exchange that went something like the court asking, you're an officer of the court, do you believe this is an appropriate way to deal with my order? And the lawyer says, well, I'm not a policymaker. And the court says, you're a lawyer. It's like when the judge has to remind you that you're a lawyer, things probably not going that well. The administration has already appealed this to.

the Ninth Circuit. So we'll see what happens there and then probably after that Supreme Court as well. Yeah. And there is also ongoing litigation in Chicago slash Illinois. So essentially as we were leaving Chicago, the president announced as he had been threatening to do really for like months that he would be federalizing the Illinois National Guard over Governor Pritzker's refusal and deploying it in the city. And this is happening against the backdrop of Trump more recently having threatened to have Governor Pritzker and the Chicago Mayor Brandon Johnson arrested, which you shouldn't write off because Jim Comey was arraigned last week. Tish James was just indicted.

President Trump had threatened both of those things and very much has followed through on them. It is also happening against the backdrop of, as we talked about, with Illinois' lieutenant governor, Juliana Stratton last week, the president's statements that he wants to deploy the military against, quote, domestic enemies and have them use American cities like Chicago as training grounds. So there was this absolutely bonkers roundtable in air quotes that the administration hosted on Antifa. Yes. And Attorney General Pamela Joe Bondi spoke about what the administration wants to do with Antifa, which again, the administration defines so broadly that it includes almost anyone who has said anything critical about the administration. So here's a clip.

Just like we did with cartels, we're going to take the same approach, President Trump, with Antifa, destroy the entire organization from top to bottom. We're going to take them apart. To be clear, the administration has been summarily executing people. They suspect or just say are part of cartels. And, you know, Kate listed off. the context in which all of these events are playing out, it is also happening against the backdrop of the administration reportedly considering formally invoking the Insurrection Act, a law that if properly invoked, would allow Donald Trump to use the military to enforce federal law. I don't know. Maybe I'm being hyperbolic here, but I think if you're invoking the

Insurrection Act, you're probably thinking about how this also intersects with elections and whether you need to have the military around on election day to keep order, which would be a a pretty good way, I think, to keep people at home. Yeah, I think the old voter suppression lawsuits to prevent election officials from counting late, arriving ballots, new voter suppression, military in the streets and around polling places. Tired. Wired. Yeah. Right. Exactly. And I mentioned this a minute ago, but want to say it again, the people in Chicago and their elected representatives are very much not just sitting back and taking

this. They are pushing back in what are genuinely inspiring and brave ways. People are in the streets of Chicago, peacefully demonstrating, signaling that this country is supposed to be a democracy where we have First Amendment rights to protest, to film ICE officers, to criticize the administration and its immigration enforcement tactics. And they are doing that, even though all of us is peaceful, very constitutionally protected activity, knowing that this is an administration that has not honored those values and could well, and in some instances, has retaliated with violence and they are doing it nevertheless. So these responses, I think, are really meaningful and we should highlight them because they are a sign that, one, people are not afraid. And that's important because

as scary as this administration is and as tyrannical as the powers that the administration is claiming are, they're still weak because people are unafraid. They don't have public opinion on their side. It's important to demonstrate that, in part, to encourage others to speak out about their misgivings about what's happening. And it's also important, I think, because it's an exercise in popular constitutionalism, defining what this country is supposed to be. Are we actually a country where the president can deploy the military against critics? I think the fuck not. Or are we a place that allows protests and criticism of the powerful? That seems to be what we have been. And we could just go on and on about it. But I really want to big up these folks who are standing up because I

think it's really important in this moment where people can just be sad and depressed about what's happening, but these are real glimmers of hope and we should treat them as such. And this is why they are absolutely bent on sending the military in to stop it. Yeah. This is also happening in Portland and Oregon as well. You know, in Portland, demonstrators have taken to protesting in large animal costumes because the furries are going to help get us out from fascism. They might. They might. I know. I know. Like, the Portland frog was pepper sprayed and now there is a Portland chicken and cows. You know, the week has an absolutely incredible interview with one of the protesters, which is worth reading in full. I just want to highlight a few lines where the protester of the

Portland chicken says, quote, what they rely on is fear. So by coming out in an absurdist manner, it says that we're actually not that afraid. It also dismantles their narrative a little bit when they try to describe the situation as war turn and Christy Noam is up on the balcony, staring over the Antifa army. And it's like eight journalists and five protesters and one of them is in a chicken suit, right? Kind of undermines the narrative. Yes. So amen, more animal suits of all stripes. Governor Pritzker also got in on the absurdity. He made this appearance on Kimmel. We also got a very special report filed by J.B. Pritzker, the governor of Illinois.

This is J.B. Pritzker reporting from war-torn Chicago. As you can see, there's utter mayhem and chaos on the ground. It's quite disturbing. The Milwaukee Brewers have come in to attack our Chicago Cubs. we've seen people being forced to eat hot dogs with ketchup on them. And our deep dish pizza, well, has gone shallow. So it's a challenge to survive here in the city of Chicago, but there's no hellscape that I'd rather be in. Part of the fight in Oregon and Illinois is, as Lieutenant Governor Juliana Stratton talked about in our live show,

is about taking the fight to the courts. And that includes a case challenging ISIS treatment of protesters and journalists. which has included firing pepper balls, assaulting protesters and journalists, arresting them, shooting journalists with less lethal items in the head and the groin and pointing assault rifles at civilians who are merely exercising their rights. And a federal court issued a temporary restraining order, finding that ISIS conduct likely violated the First Amendment. The judge highlighted ISIS attacks against a reverend who is protesting at a detention facility

through prayer, right, and concluded that ICE was in violation of basically the whole First Amendment. Too sweet. Just want to briefly side note, the clergymen, they pelted in the face, which was captured in photographs, is like straight out of season two of Fleabeg, if you know what I mean. He's a hottie. I did know what you meant. Is it Ralph de Brickasart kind of priest, that kind of priest? I couldn't get a good enough look to say for sure. I'm I will say that he did have kind of like hipster jeans on, which made me think that he, like, isn't a real enough man of faith for them to actually respect by not pepper spraying in the face, which is what they did to him. So the judge in the Illinois case brought by a bunch of private plaintiffs, there's also a case brought by the attorney general, required ICE to stop dispersing and threatening or using force against people they should reasonably know or journalists without probable cause of a crime. It also limits their ability to use riot control weapons on individuals who are not posing immediate threats, and it requires ICE.

This is, I think, really important to have visible identification. And we should say that basically within 24, 48 hours of that order, it already looks like they might be violating this. There's a video now circulating of an arrest of a journalist in Chicago. Chicago and Illinois have also challenged Trump's deployment of the National Guard. So a district court declined to issue a temporary restraining order at the initial hearing, but that was in part because of the volume of evidence that had been introduced and because the court wanted to have the administration respond to that evidence. Then at a subsequent hearing later last week, the judge did grant the TRO that the city and state

had requested, finding that the deployment of the guard was, in fact, unlawful. And the judge said it came down to a credibility determination. So this is a judge faced with voluminous evidence of the federal government's wrongdoing was like, yep, looks like wrongdoing, credibility determination. At the hearing explaining the order, the judge said, quote, I simply cannot credit the Trump administration's declarations to the extent they contradict state and local law enforcement. DHS's perception of events are simply unreliable. And the judge continued, quote, deportations are up, arrests are up, the courthouse remains open

and always has, federal laws are being executed, they're also being broken, they have been since the beginning of time. Just a refreshing breath of reason. Yeah. And during the oral argument about whether to grant the restraining order, the judge suggested that the federal government's definition of rebellion would mean that literally all nonviolent protests could be considered evidence of rebellion and asked the department if that was their argument to which the federal government said the president has determined there is a danger of rebellion and you must defer to that finding. Basically, yes. So, seems like the DOJ could declare giant furries and inflatable animals like the Portland Frog, which if you haven't watched the videos, you should, and the Portland Chicken

to be a rebellion. You will respect my authority. Thanks, Cartman. You're welcome. One other piece of news out of the windy city in Illinois. When we were there two weekends ago, there were initial reports of ICE agents shooting a woman. At the time, the story was developing and the facts were not clear, so we didn't cover it. But ICE initially said that the woman had boxed in ice agents with her car. Well, according to the Chicago Sun Times, again, hooray for local journalism, there are now reports that the body cam video actually depunks this account and indicates that ice lied. So based on this body cam video evidence, the woman didn't box ice in or drive at them with her car. And instead, the video shows an officer saying, do something.

before pulling over and shooting the woman five times. Her lawyer says that the woman, who the federal government subsequently indicted, had seven holes in her. And a judge denied the government's request to detain her, along with one other individual, the government has indicted. And the upshot here is ICE lies. And it is important for people to know that, especially as attempted prosecutions of people for allegedly assaulting ICE officers or obstructing ICE continue.

So in case you are not aware, upcoming weekend on October 18th, there are No King's protests planned in a bunch of places. You can easily find yours in whatever city you live in or going to be in. I'm planning to be there. We definitely encourage you to be aware, be safe. Republican leadership already seems to be trying to gin up possible confrontations with peaceful protesters. Here is how Speaker of the House, Mike Johnson, spoke about the No King's rally that is being planned for D.C. We're so angry about it. I mean, I'm a very patient guy, but I have had it with these people. They're playing games with real people's lives. The theory we have right now, they have a hate America rally

that's scheduled for October 18th on the National Mall. It's all the pro Hamas wing and the, you know, the Antifa people. They're all coming out. As we have said, these kinds of protests are incredibly meaningful and important. It can be really empowering to realize there are a lot of people who, like all of us, recognize that we cannot continue to be on this path and be a country with democracy and the rule of law. And having the Speaker of the House tell Fox that peaceful demonstrations are gathering of organizations that the administration has described as violent terrorists is just another effort to escalate and another effort to thwart dissent. Strict scrutiny is brought to you by Cozy Earth. I love feeling cozy.

Part of how I feel cozy is because I have my little cozy maker, Cole, the Beech Pooh. I love him so much, but I also feel cozy when I snuggle up in my cozy earth products. That could be so many things that I love from the cozy Earth line, from their wonderful pajamas that are made from viscos, from bamboo, or their new bubble blanket. That's really lovely and cozy and warm and honestly loved by not just me, but also coal. Cozy Earth is also different from other products, because because it's temperature regulating. So when you use these cozy earth sheets on your bed, you are not going to have one of those sweaty, messy, paramedopausal. Sorry guys. Nights, you're going to wake up feeling cool, refreshed, and ready to start your day. And here's the best part. Cozy Earth, because it wants to be a part of your lifestyle, not just an episodic fling product, wants to make sure that you love their product. So they're offering you a 100-night sleep trial. Try them out. If you don't love them, you can return them. Hassel-free. But trust me, you won't want to return them because you will love the cozy nights that you have with

your cozy earth products. Furthermore, Cozy Earth comes with a 10-year warranty because once you feel this level of comfort, you will want it to last a decade, unlike the Supreme Court. So, if you're ready to have the best coziest night's sleep of your life, head on over to cozyearth.com and use the code strict for up to 20% off. That's cozyEarth.com code strict. And if you get a post-purch survey, make sure to tell them that you heard about Cozy Earth right here on strict scrutiny. Cozy Earth, because home isn't just where you live. It's how you feel. Let's go home with Cozy Earth. I think we should end this on a more lighthearted note, which is to call attention to the absolutely

fantastic week that this administration. has had because it really is bringing in only the best people. And that week featured this moment from one of our faves, Secretary Buildabair, who we're just going to provide to you right here without any context because it is best that way. Somebody showed me a TikTok video of a pregnant woman at eight months pregnant. She is an associate professor at the Columbia Medical School. And she is saying F. Trump. and gobbling Tylenol with her baby in her flicentia. And the level of Trump-terrangement syndrome has now left political landscapes,

and it is now in the realm of pathology. Can I just say I finally saw one battle after another this past week, and one of the characters, and I won't say, who had such RFK Jr. energy, Leah, you've seen it. You know what I'm talking about? Yeah, yeah, yeah, yeah. Right? Did you feel it while you were watching it?

Yes. Yeah, yeah, yeah. Melissa, you haven't seen it yet. I've not seen it yet. You got to say it. I just need to find three hours where I am not sleepy to go. Easier said than done. Okay.

That's fair. This clip did make me think that maybe I should dress up as a giant Tylenol bottle at one of the protests. Also takes some hours to actually construct out of cardboard, but maybe time well spent. Yeah. Yeah. I mean, can we just talk about the words here? I mean, like, who's been dobbling Tylenol is the real question? Like, baby in her placenta.

Like, this is a man who has a lot of children and comes from a large family, but yet does not seem to know where the child is lodged. I really hesitate to say anything that could be construed as defending RFK Jr. But there is definitely a possibility that he was saying in her baby and her placenta, that she's getting all the Tylenol to both. And he's defending the placenta as well as the in utero. Wow. I mean, the placenta is the new fetal personhood. Okay, I don't know I know what else. Here we are, placental personhood.

All right. As I also alluded, we were also treated to the appearance of one Pamela Joe Bondi before a Senate committee. And I thought maybe we shouldn't do it, but no, since we heard Secretary Bill DeBarre, I'm just going to have to say something about it. So Attorney General Pamela Joe Bondi introduced us to a whole new approach of Senate testimony. And Kate, I want you to take some notes here. Basically, instead of trying to respond to questions or to correct. what may have been mistaken premises or claims, or just to inform the Senate and the public that might be watching, what if you treated your Senate testimony as an opportunity to behave

like a very bad insult comic? Roll that tape. Do you believe that government officials like Gregor Bovino are obligated to follow applicable court orders, whether they agree with them or not yes or no? First, Senator Padilla, you have gone on for over five minutes, and I wish that you loved your state of California as much as you hate President Trump. Would be in really good shape then. Information, if I can finish answering the question, I'm not going to yell over you. I'm not going to get in the gutter with you. But information, information that the Biden administration told them not to investigate Hunter Biden's involvement with Ukraine.

And I'm not going to be lectured to you about intelligence. another topic by someone who lied about being in the military just to be elected a senator. You were asked by my colleague from Vermont, whether you will support providing a video or audio tape if it exists, of Mr. Holman taking $50,000 in bribe money from the FBI, will you support requests by this committee to provide that tape or tapes to the committee? Yes or no? Senator Schiff, you can talk to Director Patel about that. Well, I'm talking to you about it. You're the, you're the Attorney General. This will be your decision. Will you support... Don't have to tell me what is my decision and what is not my decision. I said you can talk to Director of the health.

You think you've got a gotcha with Tom Holm and our borders are. Excuse me. Who's been out there fighting for our country since Donald Trump took office. I'm trying to ask you a question. Will you support that request? Will you apologize to Donald Trump for trying to impeach him? Caroline Levitt is one of the most trustworthy human beings. No. So was she, was she right? If you work for me, you would have been fired. Okay, here's a summary of all the questions she refused to answer from Senator Schiff. You were asked whether you consulted with career ethics lawyers as you promised you would do during your nomination hearing when you

approved the president receiving a $400 million gift from the Qataris. You refused to answer that question. You are asked who or what role you may have played or who played the role in asking that Trump's name be flagged in any of the Epstein documents gathered by the FBI. You refused to answer that question. You were asked whether Holman kept the $50,000 bribe money. You refused to answer that question. You were asked whether Holman paid taxes on the $50,000 bribe money. You refused to answer that question.

You were asked, did career prosecutors find insufficient evidence to charge James Comey? You refused to answer that question. you were asked how are military strikes on these boats in the Caribbean legal and you refused to even answer that question you are asked

excuse me excuse me you are asked did you discuss indicting James Comey with the president refused to answer that question you were asked did you approve the firing of any trust lawyers who disagreed with the Hewlett-Packard

merger you refused to answer that question you were asked whether you support a restoration fund for violent insurrections to attack the capital on January 6th refused to answer that question. You were asked whether you were firing career professionals, career prosecutors, just because they worked

on January 6th question, January 6th investigations. You refused to answer that question. You were asked by my California colleague whether you believe government officials, like immigration officials, have to abide by court orders. You wouldn't even answer that question. This is supposed to be an oversight here.

Oversight? These, excuse me, you can attack me after my time is over. Oh, he's attacked all of us, including President Trump for your entire career. And I know you've got plenty of canned attacks. We've heard them all day to day. Can't attacks on you? This is supposed to be, excuse me, regular order, Madam Chair. I'm trying to speak.

And when Senator Schiff said she brought canned attacks, he was right. The Daily Beast analyzed photos of Bondi, which included photos of her notes to herself, which said things like going after DJT and photographs of social media posts and Bondi seemed to have an entire page devoted to one Senator Sheldon White House. Why you ask? Well, listen to this exchange.

Let me ask you something else. There's been public reporting that Jeffrey Epstein showed people photos of President Trump with half-naked young women. Do you know if the FBI found those photographs in their search? of Jeffrey Epstein's safe or premises or otherwise. Have you seen any such thing?

You know, Senator White House, you sit here and make salacious remarks once again trying to slander President Trump left and right. When you're the one who was taking money from one of Epstein's closest confidence, I believe, I could be wrong, correct me, Reid Hoffman, who was with Jeffrey Epstein on multiple occasions. And the senator sitting right next to you tried to block the flight logs from being released. Yet, you're grilling me on President Trump and some photograph with Epstein? Come on. The question is, did the FBI find those photographs that have been discussed publicly

by a witness who claimed Jeffrey Epstein showed them to him? You don't know anything about that? Okay. That is, as we say in the business, not a no. I just love that she was like the macro attorney general. Like, if they are mean to DJT, shift F3, here's my answer. If Sheldon Whitehouse asks me a question, shift F4, like, boy. Macro, choose your own adventure.

Well, hopefully that brought you some kind of perverse joy to end this heavy episode. And with that, we are going to wrap our. new segment of today's episode. But do stay tuned for our conversation with John Witt about his great new book about how a group of inspired and committed radicals helped move the country toward better labor policies, real democracy, and civil rights. Sounds like a fantasy novel. Anyway, but it's history. That's the thing. Also fantasy. Struck scrutiny is brought to you by MintMobile. If you're still overpaying for wireless, it's time to say yes to saying no. At MENTMobile,

Mobile, their favorite word is no. No contracts, no monthly bills, no overages, no hidden fees, no BS. Here's why so many people are saying yes and making the switch and getting premium wireless for just $15 a month. You can ditch overpriced wireless and their jaw-dropping monthly bills, unexpected overages, and hidden fees with plans that start at just $15 a month at Mint Mobile. All plans come with high-speed data and unlimited talk and text. That's a lot of text messages delivered on the nation's largest 5G network. You can use your own phone with any Mint Mobile plan and bring your phone number along with all of your existing contacts. Crooked Media's favorite Mint Mobile subscriber Nina says that when she made the switch to

Mitt Mobile, it was so easy. She even got to keep her own phone number. And best of all, she's paying a fraction of what she was paying on her old plan with one of the big wireless companies. So if you're ready to say yes to saying no, make the switch at Mintmobile.com. slash strict. That's mintmobile.com slash strict. Upfront payment of $45 is required. It's equivalent to $15 a month. Limited time, new customer offer for first three months only. Speeds may slow above 35 gigabytes on the unlimited plan. Taxes and fees extra. See MintMobile for details. And we are delighted to be joined for this conversation by John Fabian Witt, the Duffy Class of 1960, Professor of Law at Yale Law School, and a professor of history at Yale. John joins us today to talk about his fascinating new book, The Radical Fund, How We Band of Visionaries, and a Million Dollars, Upended America.

John, welcome to strict scrutiny. Thank you. It's so nice to be here. Well, we're delighted to have you to talk about this fascinating work of history. So it's a historical book, but I really cannot overstate how directly and urgently it seems at every turn to somehow be about the moment. And I think what I mean by that will become clearer, but maybe let's start with some background. Yes. It's also relevant to the current moment, but also uplifting. And so that is a very unique combination. And again, this will become clear. Okay. So let's start with the basics. What is the fund that's referred to in your book's title? So in 1922, a slightly confused Harvard

undergrad inherited a million dollars. And he decided he didn't want it. And he refused. it, which caused a huge uproar, and newspaper reporters came from all over the country. And that resulted eventually in Roger Baldwin, who just founded the ACLU, and Upton Sinclair, the novelist, author of the jungle, writer, national figure, persuading this young man, Charles Garland, to give it to them and to let them decide how to use it. And they created a kind of extraordinary foundation, the American Fund for Public Service, sometimes known as the American Fund, and sometimes known as the Garland Fund. Or the Radical Fund. Or the Radical Fund. Or the Radical fun. Yeah. So in establishing this fund, you know, as you know, Garland worked closely with Roger Baldwin,

who was director of the ACLU and also a renowned champion of labor and civil rights. And together, the two men, you know, proposed to test new ideas for what they believed was the central question of the time. This is going to sound relevant, quote, how to build democracy for an immense racially divided country in the age of inequality, mass production, and mass communications, end quote. So, John, could you tell us what was so unusual about Garland and Baldwin's vision? Baldwin was emerged as the kingpin. That was what some of his friends jokingly called him, the kingpin of this fund. And what he did was he put together a kind of dream team of people from an array of organizations who in the ashes of the progressive era were trying to figure out

how to do mass democracy. It was the era of the Great Migration, which meant mass democracy he had to be cross-racial. It was the era of the emergence of new giant firms, General Motors, General Electric, that were U.S. Steel transforming the American economy. And it was a period of new mass communications. And so Walter Lipman and John Dewey are talking about how do you do communications in a democracy?

And it really looks like ripped from the pages of our time. If you substitute AI and digitization and virtual work for mass production, if you add in social media and AI for the communication, problem, and you throw in immigration, heck, we even just came out of a pandemic. It's the same, I mean, they had a pandemic. We had a pandemic. It's kind of astonishing. Yeah, it's like largely a century ago, and things all, it all feels so, so current. So I'm going to ask you to follow up on one aspect of Leah's question, which was not just what was unusual about the kind of capaciousness of their vision and the different fronts on which they understood they needed to

work, but also just more technically what was distinct about the way they said about spending this initially just this million dollars, which is, what, 18 or something in today's dollars, 18 million? It's compared to the just enormous foundations, both now and even of the time, things like the Rockefeller Foundation, this was obviously far smaller in scale. And they also just chose a distinct structure, right? They wanted to spend down rather than, you know, have create this perpetual foundation the way their larger peers were doing.

So can you talk a little bit about the significance of that choice compared to other models and kind of paradigms at the time? Yeah, it starts as a million dollars, but, you know, it's the stock market of the 1920s. So they actually, they make another million. They double their million, which they find kind of funny, and there's lots of jokes about it because they can't quite believe that they're in this critical position with respect to capitalism, but capitalism's funding them. And so in the end, they give away $2 million.

Call that $36 or $40 today. It was 34 when I started, but inflation. The book took a few years to finish. Exactly. If you index it, you get to about 40, you know, if you recalculated it as a share of the American economy, you get to a much larger number, a couple hundred million dollars. And then now you can see the kind of impact it might have made. But I think more than the money, it was bringing certain people together around the table and occasioning conversations. I mean, the bringing

together the head, the first black head of the NAACP, with the head of the ACLU, with the labor intellectuals and organizers who are creating the Congress of Industrial Organizations. I mean, That's the magic of this thing, is putting those three movements, which are the three central social movements underlying New Deal liberalism and the civil rights age that followed. And there was no place where those kinds of people had talked to one another and argued with one another and fought with one another before. And it changed the way they thought about things. So obviously the individual personalities and relationships are an enormous part of the book. maybe before we talk about any of those, can you just talk a little bit in moderate, I would say, detail or depth, about some of the fund's premier achievements. And you know, you say, and maybe this has come through already, that there's this distinct kind of crossroads of not just the different kind of rights movements that are working together, but also this kind of unique intersection of radicalism and practicality that characterizes much of the work of the fund.

And you say that this fund and the people who were stewarding it help lay the foundations of some of the signal achievements of the 20th century. So can you identify two or three examples? Yeah, let's talk about two. And I think, you know, one interesting thing at the outset, I might not call them rights movements. They become rights movements after World War II. And which is a really interesting institutionalization of their successes. And that actually, I think, should maybe help us rethink what the rights revolution was after World War II. But let's talk about two examples.

And the one, the core, the most important. is the invention of a new way of organizing working class Americans. The CIO brings together industrial organizations, trade unions were the old way, and unions organized around on an industrial scale, such that everybody working for a single firm, is in the same bargaining unit to use the language of the National Labor Relations Act, which comes out of much of their work.

So organizing the labor movement for the modern world, for the modern mass production economy, that's a crucial thing. And it comes out of the intellectual work of folks in the 1920s like Sidney Hillman, who's on the founding member of the Garland Fund board, and then his lieutenants who staffed the board for the next decade and a half. So industrial unionism is a conversation of these people are in helping to form. One of the things that mass production unions have to do is organize across race. That is to say, once the Great Migration is going,

If you're organizing everybody at a company, you're not just organizing the bricklayers or the carpenters. Now you're dealing with people across race, across ethnicity, after the mass immigration of the early part of the 20th century. And so the second great accomplishment is putting together an architecture that attacked Jim Crow. And that's something that came out of a decade of conversations internal to the fund in which the black members of the fund's world pushed over and over again for the white future CIO, a future Congress of Industrial Organization Fund. folks to think about race and to bring race into their story. And so in 1929, 1930, and this is really the thing for which they are known. It's how it came to my attention, this foundation. They launched the NAACP's litigation campaign. So industrial unions and the Brown Against Board of Education campaign come out of this. You can't tell the story without this outfit. And it's kind

of astonishing. So I'm so glad you just brought up the fund being a key early supporter of the NACP, you know, that included financing Thurgood Marshall's first salary and fueling the litigation that led to landmark victories like Brown. But although the funds association with Brown is rightly celebrated, you note that the fund also supported litigation in another case, Steele v. Louisville and Nashville Railroad, and that in some ways, like that case was more significant. So can you elaborate on that point, like what the Supreme Court did in Steele

and what it tells us about the fund? Yeah, Steele is a 1944 case, so a full decade before Brown against Board of Education. And, you know, the insider legal historians have been telling the story of Steele for a while. Great work by Sophia Lee at the University of Pennsylvania, Richard Ghalyubov, former dean at Virginia, Ruhl Schiller out at UC San Francisco. But what Steele says is that labor unions, which are at this moment are mostly white, and some of them by charter exclusively white, so that the Jim Crow labor unions have an obligation of good faith representation for their black workers.

That's the steel case. A man named Bester Steele is a black railroad worker in the South. And he brings this case with Charles Hamilton Houston, who'd worked closely with the fund. And interestingly, the fund and the NAACP don't bring this case. It's too difficult internal to the coalition with labor to bring that case, to sue the labor unions. And so one of the things that this amazing steel case brings out is the ways in which the coalition had fractures and had tensions inside it. It's hard to be in coalition with somebody and bring a lawsuit against them. And so the Steele case, the reason the Steele case is so important is that it focused on the economic side of civil rights.

Civil rights quickly, as people like Professor Goluboff have identified, moved away from economic questions and property questions and wealth questions. And Steele is all about employment. And that's why I think it was really a crucial and now too forgotten case. Why don't we know about it, teach it? Yeah, well, it fractures the coalition. I mean, one thing that Steele did is that authorized lawsuits by any number of employees. employees who felt poorly represented by their unions for decades to come. Unions hate steel.

I mean, they may be okay with the civil rights piece of steel, but it authorized actions by people who were against unions in favor of right to work. It really made union control of the shop floor more difficult rather than easier. And that's because unions were Jim Crow outfits for decades, even a century. Okay, so I want to shift and ask a different question, which is that we are recording this segment just a couple of days after the assassination of conservative activist Charlie Kirk. And there have understandably been a lot of conversations in the last couple of days about whether we are entering or living in an era of political violence. And there's a lot of violence in the book.

There is horrifying white supremacist violence. There is a lot of detail on a 1917 race massacre in East St. Louis. That is a very difficult part of the book to read. There's also violence by some of the more radical elements of the labor movement around the same time and into the 1920s. So can you talk about kind of the arc of the book when it comes to violence? Obviously, the two examples I gave are very different kinds of violence, but they're both violence. So what is, what story about violence does the book tell? Well, you know, the 1900, the first decade of the 20th century and then the 1910s are periods in which the left, certain segments of the left, are just engaged in forms of political terrorism. I mean, there are,

any number of bombings and assassinations that come out of anarchist and labor union efforts. And it's the 1920s that sees the first concerted self-conscious movement effort to reject violence and to move to various forms of nonviolent protest. And the fund is one of the sites for that conversation and that pivot. Elizabeth Gurley Flynn, who's a member of the Fund's board through much of the 1920s, is someone who'd been in the industrial workers of the world. been a wobbly, she'd been an articulator of the claim that violence is okay when necessary. And in the 20s, after the complete and utter failure of that catastrophic 1910 strategy, Flynn is

persuaded and moves with others to a different kind of politics. The Brookwood Labor College is this amazing forgotten institution from Cotona, New York, which it trains a whole generation of labor movement organizers and activists and civil rights characters. It's a forerunner to the Highlander Folk School in Tennessee, which is Rosa Parks, Martin Luther King Jr. and others. And the Brookwood schools training is all about nonviolent politics. A.J. Mustie, pacifist, Dutch reformed minister is the guy who runs it. And that's one of what of the Garland Fund's major project. So there's that transition and you can watch that arc. And I think we've just forgotten that story about the 1920s rejection of violence and the turn to nonviolent protests and nonviolent movements,

both as a matter of principle and as a matter of strategy. Both ran together. And that was one of the parts of the story I did not expect to encounter. But it really was like a lightning rod through the material. So staying on the parallels between the book and the present day, in the epilogue, you reflect on the truly remarkable scope of what the fun accomplished during its lifetime. You write, quote, for a generation for nearly the entirety of the time between the two world wars. The fund sustained experiments in industrial democracy for a racially divided nation. The fund had finance, publicity, and propaganda, and mass organizing.

It had sponsored innovation in the affirmative use of the state by liberals and the labor left. It had helped transform the laws of labor and free speech for a modern democracy. It had remade the project of racial liberation. It had financed dozens of fights to make a better world, end quote. Yet you also warned that much of what the fund's beneficiaries accomplished is undersea. today. So what parallels do you see between the battles over democracy and rights in the fund's era and the crises we face in 2025? Well, it's really, it's what ended up driving the book. The book took a long time to write, and the thing that propelled me was just watching the

parallels emerge. You know, I don't think that the fund could have changed the world in all those ways on its own. It took a depression. It took the huge calamities of World War II to propel things along, but think calamities and catastrophes don't determine their own outcome. We don't know whether a calamity is going to produce fascism and autocracy or some kind of better order. And it's the ideas and social movements that calamities find that direct history into the paths that it takes. The parallels for today are really astonishing. And the thing that I'd say is that economic transformation, the complete reordering of our economic landscape, It undoes social movements.

It undoes social formations. The kinds of liberalism that mid-20th century America managed in part to achieve rested on a whole industrial structure. And what we're seeing today is the undoing of that industrial structure, the undoing of the labor unions that once were membership for millions and millions of American workers and just don't play the same role in the private sector anymore. So I'd say that the economic situation, it's not that we're going through the same transformation. is that we're going through another transformation. James Walden Johnson, who was the fund board member on the NAACP, he had a New Haven conference in the 1930s, said, the world keeps changing.

And so no matter what strategy you develop to make a better world, the world's going to change, and you're going to need a new strategy. And I think one of the things we're seeing is that the strategies they put in place were pretty well-suited, astonishingly well-suited, to the world they were in. And what we've got to figure out today is a way to organize and connect working people across race and across ethnicity, across nationality for an economy that looks totally different and opposes new challenges and for an information economy that looks different. That's the way they're parallel systems and, and, you know, the search is on again now to figure out ways to do what they did a century ago. So over on Blue Sky, you know, in the lead up to the book, you have been posting a kind of character from the book of the day.

And it's a remarkable kind of sampling of the many different people, you know, that were related to and made use of the funds. So I was hoping maybe you could share with our listeners a favorite or lesser known one or two characters just to give them a sense of some of the people that are discussed in the book. It is unbelievable how many luminaries of legal, political communication, thought are jammed into this. I mean, the book's not short, but it is still like paid. for page, like an incredible density of extraordinary characters who all intersected in ways that, like, most of us had no idea ever, you know, were kind of fellow travelers in the way that they were. So sorry to interrupt, but please, choose a couple. No, no. It's great, Kate. It tells you something about the small world that was 1920s

New York City. I mean, that is to say it. I mean, of course, Ronald Niebuhr is hanging out with John DeW and Walter Lipman and Roger Baldwin. Like, it just makes sense. And James Weldon Johnson and W. Debordes are just a few blocks away, right? And you've been I mentioned Clarence. Daryl comes, you know, like Margaret Sanger, Frank Murphy, and when he's a trial judge in Detroit. I mean, that's more earlier. It's like six degrees or seven degrees of Kevin Bacon,

but with literally all the progressive figures, right? Yeah. Right. Right. And Roger Baldwin is the Kevin Bacon. I mean, he's just such an active person. He has some number of phones on his desk at all times. I mean, he just can't be contained by one telephone.

It's kind of a, he's like, he would have been an early social media adopter. Oh, he would have been a real poster. Yeah. Exactly. Right. Exactly right. One of the reasons for the characters and to bring them out on Twitter and Blue Sky is, you know, some of them are known characters. We just ran through a couple that some listeners might know of, although a lot of Americans aren't going to know any of those people, right? But a lot of these characters aren't known at all.

You know, John Brofey, the child laborer in the coal mines, who teaches himself and becomes a leader in the dissident side of the coal mine workers union, but plays a huge role in figuring out how to organize workers. the 1930s, any number of people. And I wanted to write a book that had characters because human agency is helping to shape the story. It's not just a war and an economic cataclysm. It's also people, but it's people in social movements who aren't necessarily the presidents who drive certain kinds of history. So I love the characters. Here are two characters. Let's go back to Sidney Hillman. I mean, this guy, Lithuanian Jewish immigrant, chased by the czar into the United States, starts in New York, ends up really in Chicago mostly, starts off as an organizer in a textile strike in Chicago at Hartshafter and Marx in 1910,

and by the 1930s, Franklin Roosevelt is going to be calling him the central figure in the New Deal. Big questions come up, and Roosevelt says, go ask Sydney. So this is just an amazing arc for his life, and he's on the founding board of the fund and helps to focus the fund on this centrist, pragmatic, and yet energetic unionism that really is the center of the fund's work. I went into thinking the center of the fund's work would be Brown against Board of Education. And the answer really is that it was industrial unionism and that the civil rights piece comes in because you can't do unionism in the United States without organizing across race.

So Sidney Hillman is a character and just an astonishing biography of Hillman by Steve Fraser back in the early 1990s, highly recommended. So, Sidney Hillman, second character, I mean, James Weldon Johnson is maybe the person I came to love most in this book. You're born in Reconstruction, Jacksonville, Florida, at a time when Reconstruction has produced black control of Jacksonville. It's a black middle class running the city, the Republican government running the state of Florida. And his childhood and teenage years watches the Jim Crow Curtin fall. on the American South. He watches white takeover the so-called redemption of Florida. He watches the black middle class

kicked out of Jacksonville, and he's nearly lynched in a race riot in 1900 in Jacksonville, which was one of a number of things that leads him to head for New York, where by 1920 he becomes the head of the NAACP, the first blackhead. These are just amazing human beings, and one of the excuses for the book is this fun brings them all together. I mean, it's not Their lives I follow in the book because I just find them fascinating. And the reason it's so long is that I'm following these characters who come together around this table.

Will you actually talk a little bit about the process of researching and writing a book that has so many different characters and storylines? Yeah, it was the hardest book that I've done. Just to figure out a narrative structure for it, the story of the fund, its internal organization is something that I wanted to have in there. But honestly, we don't want to read about the internal corporate structure of the fund. There's some tax law in this book. I did some tax law on it to figure out how – it's an early adopter of special tax status. But what I really wanted to do is dive into the social movements that are the core of the fund's world. Really, it's a book about the world of the fund, a lost social world that we've forgotten about.

And that I think holds lots of problems for thinking about how to make a future in the 21st century. And it meant going to archives all over the country. I mean, some of it's in New York, because the fund was in New York. and the New York Public Library got these materials in 1941 when the fund closed down. So all the funds, papers are right in Midtown. But the movements are organized all over the country. And so I was in California. I spent a lot of time in Detroit where the amazing Walter Ruther Library has astonishing archives.

There's stuff in Boston since the Sacco and Van Zetti campaign is so central to this outfit, the National Archives, the Library of Congress, all over the place. And I was really lucky that right across the street from where I am right now is the Kineke Library, where James Weldon Johnson's materials are. So, you know, it just took Texas. The University of Texas somehow ended up with probably the second best collection on the Garland Fund. You know, a man named Morris Ernst, whom we haven't talked about. But there's an interesting sub-thread here about Jewish lawyers in this period and their contributions. And Morris Ernst is one of those. So are you hoping to inspire other Charles

Garlands through this historical excavation and story? You know, I do, I reference that idea at the end of the book. And it's a different philanthropic landscape right now. In 1922, if you created a liberal left foundation, you could get all of the players to come to your table because there was nobody else in the game. I mean, today, the liberal left side of the philanthropic world is full of actors, energetic, lots of efforts. And it's really hard to get a conversation that brings everybody to the table. So, you know, I, I am hopeful about the prospect of identifying a 21st century organizing principle and organizing institution, a CIO, an industrial union, a cross-race for the 21st century, I don't know that

it's a union. I don't know what form it takes. And for sure, whatever form it takes, resources are going to be required to make it go. I mean, that's one of the lessons. You can't do the work of organizing. You can't have people dedicate their lives to the project of trying to find new forms without the resources to let them to let them do it. But one of the many hopeful notes in the book is it actually doesn't require resources to the tune of like billions of dollars. Like you actually, you need resources, obviously, to start something like this. But that was why I found it intriguing.

Like, there are, there are, it's not impossible to imagine something comparable in sort of scope. Of course, getting the kind of cast of hearts and minds together to actually do a version for the 21st century of what was done by the fund. is of course a tall order. But the book has a real hopeful feel to it. Well, that's why I wrote it. I mean, it's, you know, and I started it at a different time in our politics. It was 2013, 2012 when I started. And, you know, the transformations in our own time have been astonishing to watch. And, well, the book, the book has helped sustain me. I'm hopeful that it might help sustain some readers along the way. And yeah, but the parallels are really kind of amazing. I think that's a good place to leave it. The book, once again, is by John Fabian Witt.

The title is The Radical Fund, How a Band of Visionaries, and a Million Dollars Upended America. Again, it is both almost novelistic in the number of interconnected characters and storylines and profound in its meditation on politics and organizing and really does sort of leave you with a good deal of hope. So highly recommend it to our listeners. John, thank you so much for joining us. Thanks. It was a fabulous conversation. Glad to be here. As promised, that was an inspiring and topical conversation. And on a similarly high note, we're going to leave you with our favorite things.

So videos of the Portland Frogs and Portland Chicken protests definitely recommend. Same with the videos of protests and demonstrations in Chicago. I also listened to an episode of the Sentimental Garbage Podcast on Taylor Swift Life of a Showgirl. And honestly, it opened my eyes to the absolute right way of understanding the album. It's hilarious. It's smart. Well, you give us like one, like a tiny little sliver of it or do you have to just listen? You just have to listen because, yeah, it's incredible.

So also, L.A., I'm going to be at the Hammer Museum tomorrow. So October 14th at 7.30 p.m. I'll be discussing the Supreme Court and my recent book, Lawless. These things are basically synonyms at this point. Admission to the event is free. So come and join if you're in the area. Again, that's Tuesday, October 14th at 7.30. So I've already recommended Lily King's brand new novel, Heart the Lover, which I so loved and I really want you guys to read. I then read her kind of related novel, writers and lovers. The only thing of hers I'd ever read was Euphoria some years ago, which is incredible. And I think I'm just going to become a Lily King completest. And by the next time we record, I'm going to have read all her books because they're all very short and just tear through them. And I'm also now listening to Rachel Kushner's Creation Lake, which I never listened to and is great.

And I want to shout out around our live show in Chicago, I spend. some time in Wisconsin in the Driftless region, which is like west of Chicago, and is a beautiful kind of like hilly area, and spent part of the weekend at the Red Clover Ranch, which is an unbelievable little retreat destination, and drank a lot of amazing wine insider from Las Mujeres winery, which is near there. I've mentioned it on the pod before. But if you're lucky enough to live somewhere, you can get those beverages, and I can't in New York, run, don't walk to do that.

Okay. My favorite things this week was that I got to attend this absolutely fantastic convening that our good friend of the pod, Sherilyn Eiffel, convened with Sarah Elizabeth Lewis of Harvard University at the Ford Foundation. It was called Vision and Justice Now, and it was absolutely remarkable bringing together lawyers, activists, and artists to imagine in this period that Sherilyn calls the Nadir the tools that we will need to create and cultivate in order to perfect democracy when we are ascendant again. And it was basically just kind of putting aside seed corn in this dark time

for better times to come. And it was so inspiring and nurturing and just absolutely amazing. So many great people. The amazing Carla Hayden from the Library of Congress was their amazing artists like Mark Bradford and Carrie Mae Weems and Amy Sherald, Ava DuVernay, the director was it. It was just like absolutely star-studded and fantastic and just so completely inspiring. And there were a number of strict scrutiny listeners in the audience, including Faye Savage. Faye, great to hang out with you. And Jane Smith, who was there.

And I'm not going to lie, I was a little fan girling with Jody Foster, who I happened to actually sit next to. and it was like absolutely amazing. So totally, totally fun, absolutely fantastic. Great job. Sherilyn, you just, it was amazing. Totally gagged 10 out of 10, no notes. The other thing I'm recommending is a little less highbrow.

It is an Instagram account called Miss Toy Poodle. And it is about a beautiful man with lovely eyebrows who carries around his red toy poodle who looks a lot like Stevie, only he dresses her in amazing clothes, not a criticism of you, Leah, just a noted fact. And he basically treats this dog like his daughter. And so he's like, you know, don't try and feed my daughter treats on the street. Like she doesn't eat your street food. The whole thing is hilarious. Please check it out. Miss Toy Poodle, absolutely fantastic. Not highbrow, but very funny and nourishing in its own way. All right, housekeeping. Guess what, strict listeners. You have been hearing us talk about Cricket Connob.

for weeks now, but here's the deal. It is sold out, and it's sold out faster than ever expected. But by even more popular demand, it is getting an upgrade. CricketCon is officially moving to a bigger location, and that means there are more tickets, more panels, and more guests. And the new venue is, drum roll, please, the Ronald Reagan building an international trade center where all the liberal squishes come from. I can't wait.

Your favorite Crooked podcast hosts will be there. Plus, Governor Andy Bashir, Anderson Clayton, Ben Wickler of Wisconsin Dem, Senator Rubin Gallego, Maurice Mitchell, Hassan Piker, and more. And we are adding a Vote Save America Action Hub, a space where our partner orgs can hang out and focus on activism so you can leave with the tools that you need to fight for democracy. This event just keeps getting better and better. It's not like the administration in that way. So don't miss out on this last batch of tickets. And as a reminder, we, the ladies of strict scrutiny, will be closing out CricketCon with our live show. Basically, all those people I just mentioned are just warm-up acts for this.

That's right. So get your CricketCon tickets at CricketCon.com. The ticket will give you access to the full day of conversations, panels, and workshops. So get your tickets before they sell out again at crookedcon.com. Also, in today's attention economy, the only thing worse than being hated is being boring. Right. That's the world reality TV built in all its messy glory. And it's probably one of the best ways to escape after mainlining the news every day. It's becoming clear how reality TV hasn't just changed TV. It's changed, culture, fame, everything, including politics. I escape to Bravo as my escapism. The real house is the Salt Lake City is incredible. Like Lisa Barlow was born for television. I aspire to be like Meredith Marks. You know what? I will not accept this Atlanta erasure. Okay, I was getting there.

There's not a day that goes by when I am not repeating lines from either Heather Gay, Nini Leaks, or Shiree Whitfield. Who gone check me, boo? Or fix your face. It's all there. She got a white refrigerator. Hi, Kate. Well, Kate, this is for you. In a very special love it or leave it series, Bravo America, John Lovett dives into the reality TV universe, interviewing icons of the genre to explore how these shows blur the line between authenticity and performance. Be cool. Again, Kate, that's for you. Don't be all like uncool. You can find this series every Tuesday on the Love It or Leave It feed and on YouTube. Oh, my God. I'm literally like the target demographic.

Yes. Just the tip, though. Just the tip. Melissa still hasn't stopped saying that phrase. I love it. I love it. I never one or two. All right. I'm going to listen. I know I will report.

When you know better, you do better. Strict scrutiny is a crooked media production hosted and executive produced by me, Leo Littman, Melissa Marie, and Cade Shaw, produced and edited by Melody Raoul. Michael Goldsmith is our associate producer. We get audio support from Kyle Segglin and Charlotte Landis. Our music is by Eddie Cooper. Production support comes from Madeline Herringer, Katie Long, and R.A. Schwartz. Matt DeGroote is our head of production, and thanks to our digital team, Ben Hethcote and Joe Matoski. Our production staff is proudly unionized with the Writers Guild of America East.

Subscribe to Strict Scrutiny on YouTube to catch full episodes. You can find us at YouTube.com slash at Strict Scrutiny Podcast. If you haven't already, be sure to subscribe to Strict Scrutiny. In your favorite podcast apps, you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps. Thank you. Thank you.

Thank you.