Strict Scrutiny - Will SCOTUS Let Big Oil Off the Hook?

Episode Date: October 12, 2026

The first week of the new term has come and gone, and things are heating up… literally. Kirti Datla, director of Earthjustice’s Strategic Legal Advocacy Program, joins Melissa and Leah to discuss the term’s biggest climate case: Suncor v. Commissioners of Boulder County. They break down whether Boulder County’s lawsuit against oil and gas companies can move forward, or if the Court will shut it down based on federal law. Then, they dive into Samuel Alito’s big, bad book press tour and his reflections on Dobbs—including the friendships he says he lost along the way. Plus they cover Kash Patel’s engagement, Kimberly Guilfoyle’s corruption controversies, and Pete Hegseth’s announcement of a public execution. Finally, Melissa talks with Professor Bernadette Atuahene about her new book: Plundered: How Racist Policies Undermine Black Homeownership in America.Favorite Things:  Leah: So Unexplained: Justice Alito’s Non-Responsive Emergency Docket Defense | Steve Vladeck’s Substack: One First | Jon Ossoff V. Mike Collins Debate | Marquette Poll  Melissa: Cherry Baby by Rainbow Rowell   Take the Strict Scrutiny survey.New Strict merch available here.You can now listen to Strict Scrutiny for CLE credits in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon! More info at crooked.com/strict_cleGet tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.comBuy Melissa’s book, The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern ReaderBuy Leah’s book, Lawless, now out in paperbackFollow us on Instagram, Threads, and BlueskyFor a transcript of an episode of Strict Scrutiny please email [e-mail]

Strict scrutiny is brought to you by Americans United for separation of church and state. It's back to school and back to Scotia season. And this year, five million children across Texas are going back to the Ten Commandments in their classrooms. What is that you say? Yep. Texas politicians passed a law requiring the Ten Commandments in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas supported by Americans United for separation of Church and State are taking the fight to the Supreme Court.

And we need you to amplify their voices before the Supreme Court gets. its hands on this case. Don't let this case disappear on the cert docket and don't let it sneak under people's radar. They're going to go up, but we're going to fight to get them taken down. That's Texas public school parent Ted Lowe. Ted and Rebecca Lowe are an interfaith couple. Ted is Jewish and Rebecca is Christian and their kids are in Texas public schools. The story they tell in this video is moving and we hope that everyone hears it and shares it too. There is a human cost of Christian National's policies like these Ten Commandments Laws and the decisions the Supreme Court hands down. These Ten Commandment laws, for example, don't exactly help everyone feel welcome at public

schools as they should. Visit at u.org slash 10c to learn more about this case and how you can help join the fight to protect church-state separation. Mr. Chief Justice, please, when I argue, man argues against two beautiful ladies like this, they're going to have the last word. She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our next. Welcome back to strict scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your host for today. I'm Leah Littman. And I'm Melissa Murray. And yes, it is just the two of us, which is going to make for a fairly chaotic episode, as you know. But that seems to be exactly what we need.

to recap the first week of the new Supreme Court term and the first week of one Justice Samuel A. Alito's new book slash polemic slash Jeremiah being released, unleashed on the public. Slash word vomit. But the first week of the new term happened. And I can't say the justices exactly cover themselves in glory or gave us any indication that this year would be better than the last. So folks, that means we are going to spend most of our time recap. the big climate case that the court heard last Monday, that's Suncorr versus commissioners of Boulder County. And we are going to be joined by a very special guest, Kirti Dathla of Earth Justice, will join us for that discussion. And we are going to spend a huge chunk of time on court culture and specifically one Samuel A. Alito's big press tour accompanied by a book slash polemic slash Jeremiah and slash word vomit, which

we regrettably not only read but also saw the fallout from. So get ready. Then at the end, we will bring you an interview that Melissa did with Professor Bernadette at Tuehany about her book, Plunder, how racist policies undermine black homeownership in America. Also, just, I don't know, trigger warning. If I sound harsh or raw on this episode, I'd like to write it up to the fact that this past week I've had a fucking exposed nerve that's causing all sorts of nerve pain in my face. No, actually, this is like an actual medical thing, but also the people on the receiving end of Maestrays like Sam Alito are going to deserve it. So both and, shall we soldier on? Let's soldier. We'll start with recapping Suncor, which as a refresher is about whether Boulder County's lawsuit against oil companies will be

allowed to proceed to the next stage of the case, or whether instead the court will stop the suit in its tracks because something in federal law, although they're not quite sure what and neither the oil companies, but they do know that something in federal law, TBD slash TK, that, you know, note to yourself you make while writing to come back and insert it later, they know that something TBD slash TK does bar this lawsuit. They just need to figure out what that thing is. Sounds legit. So Boulder County alleges that several oil companies marketing practices around greenhouse gas emissions contributed to climate change that was harming Boulder, in part by damaging the county's water supply. So to help us, and probably do also help this court, as well as the oil companies, sort through what justices

Neil Gorsuch and Elena Kagan called a complicated case. We are delighted to be joined by our special guest, friend of the pod, Curti. Dotla, the Director of Earth Justice's Strategic Legal Advocacy Program. Welcome back to strict scrutiny, Curti. Thanks so much for having me. Thanks for joining us. So maybe let's do it this way. Melissa and I are going to start out by summarizing what we think are the moving parts of the case. So in some ways, this is just a standard tort case. If someone makes a product that harms you, you can sue them. If someone deceptively markets a product that harms you, you can sue them. So the city of Boulder sued some oil companies saying, you are making a product and deceptively concealing its downsides. And that's harming us pretty standard fair.

Except that they are suing, wait for it, oil companies over climate change and greenhouse gas emissions. And that, my friends, is a bat signal to all of the. Republican climate change hoaxers to come out in full force. So the oil companies launched a bunch of arguments about why this suit should not be allowed to proceed. And again, as best I can tell, and again, Curti, please correct me if I'm wrong, is that the oil companies with the support of the Trump administration are saying as follows, something about the federal constitution, again, TBD-D-D-D-K, but something about the federal constitution means that states can't use normal state law, including tort law, to address the harms from climate change.

And, or maybe or, but also maybe and, because they're not quite sure, the Clean Air Act, the statute that is supposed to be about protecting clean air from polluters, that statute actually forbids state efforts to protect clean air from polluters because textualism and big oil. And again, as best I can tell, the oil companies were floating something like the following theories about why the Constitution limits states' ability to pursue tort litigation here. Maybe it's the equal sovereignty principle that precludes this. Maybe it's the principle against extra territoriality. But maybe it's something like, I don't know, BMW versus Gore is substantive due process principle. Am I missing anything? I mean, if you're missing something that justices were too, like, as you said, Justice Gorsuch called Suncoris Theory complicated not once but twice. Justice Kagan did too.

Justice Barrett called it slippery, which I enjoyed. And Justice Kavanaugh at one point just said, like, there's a lot of constitutional theory being tossed around. So I think they were all kind of trying to figure out. Way above his pay grade, but yeah. Yeah, like, where is this coming from? What are you saying? Very basic questions. It seems like argument is kind of late to be answering.

It's like a faculty workshop, right? Like you're working out your idea with some of your colleagues. Deputy Solicester General, Sarah Harris, invoked the court's decision in BMW versus Gore. That decision limited punitive damages awards in tort cases. And it made it pretty clear that this case is partly animated. by hostility to tort litigation and that the federal government is basically inviting the justices to drill that hostility even further into the Constitution. So this is kind of a two-fer. You can serve your big oil masters and stick it to tort liability at the same time. What's a federal

government to do? It's going to keep going. Drill baby, drill. Yeah. So several justices noted during the argument that oil companies seem to be toggling between different theories, you know, as you were suggesting, Kurti. But one theory the oil companies did seem to be pushing is supposedly about extraterritoriality. So I guess what is that extraterritoriality principle as best you heard it explained? And why is that principle problematic? Yeah. I mean, I guess problem number one is that it's made up. So like I doesn't stop them before, but go ahead. Can I show you the immunity decision, You guys are like fond of saying there's no like executive privilege clause in the Constitution. There's also no extra-characteriality clause in the Constitution, but like has to stop Suncor.

So I think where you started is a helpful place to start. And actually the Chief Justice's question to Suncor's lawyer and the U.S.'s lawyer illustrate this pretty well. And he said multiple times, basically like everybody should agree at a minimum that states have the power to protect their citizens from harm through. tort law. This is like basic first year tort law. If a product is made in California and it blows up in Texas, the person in Texas can sue. And this is true, even when there's like tons and tons of harm to a lot of people, like opioid litigation, the tobacco litigation, all this stuff came up at argument. And there are limits to these kinds of suits, but they come from specific places in the Constitution.

Like the due process clause says you have to have personal jurisdiction over a defendant, otherwise it's unfair to bring them into court. But there isn't, as we just said, like a free-floating extraterritoriality principle, either in the Constitution or in the law. And I think this gets, like, hit on multiple times in the arguments because various justices ask Suncourt's lawyer to say, like, where does this come from? And he keeps getting pressed. And at some point, he actually says, like, yeah, we are making these two constitutional arguments. One's about the plan of the convention. One's about extraterritoriality. But actually, they just boil out of the same thing, which is what he refers to as equal footing, which I guess is

like another way to say I'll get to that one in a second. Yeah, but like I don't really know what to do with that if there's no clear answer for where it comes from other than to say what I started with was just made up. And then I guess problem number two, which is probably directly related to problem number one is like when you're making things up, it's hard to say how they'll work in practice. That is one of the dangers. Yeah, so like what's the line between a tortsuit and even a really big tort suit in this case? And this question gets posed multiple times. And at some point, Suncor's lawyer, response to Justice Kagan just says, like, outright, yeah, air and water are different. But that's not really an answer to, like, how do we draw a line in this case that will raise a bunch of questions in the future? How do we draw a line in this case that doesn't upset tort law that everyone seems to think should exist without these kinds of restrictions? And so, again, it's just like an answer to this case in search of a constitutional theory that has like no clear principles or limits. Someone did think that air and water pollution are different is in fact an argument. No points for guessing who will get to that in a little bit. But that plan of convention line is so

frustrating because this is a phrase the court has just started uttering in its sovereign immunity jurisprudence where it just declares that it is in the plan of the convention that the federal government can sometimes authorize suits against states. Now, like, where is that in the plan? Where is that in the text? I don't know. But it's basically become a permission structure for them just to announce rules that aren't in the Constitution, but they just know are there anyways. But since you mentioned equal footing, like that is kind of my trigger. I actually wrote my job talk paper for academia on equal sovereignty or equal footing. Equal sovereignty is, as its name suggests, this made up constitutional principle that says all states entered to the union as equal sovereigns on equal footing. If you're wondering, what does that have to do with state's ability to regulate climate? I do not have that answer for you.

I can report that the Republican appointees invoked equal sovereignty to kill part of the Voting Rights Act back in 2013 in Shelby County. So I guess they figured slap that baby, she can take another. Like, let's take this car out for another spin and use it to kill state efforts to deal with climate change too. One problem with all these theories, as you were saying, is that they are nowhere in the Constitution. So here is Justice Kagan summing up that point. So there's a default rule that was part of the plan of the convention. And I suppose it's like, wow, like, where is the text for that? Where's the support for that?

Where's the precedent for that? Where's the anything for that? Kurti, can you explain how the oil company's arguments, like, based on any constitutional principle, whether we're talking extraterritoriality, equal sovereignty, due process, plan on the convention, whatever, like how these arguments invert federalism? Yeah. I mean, I think it's pretty basic. The classic story that we tell about who gets to do what as between the states and the federal government is that the states have the power to address harms that their citizens feel in their state through what's known in the law as traditional state police powers.

But that covers like, again, the product blowing up, the environment, crime, all that stuff. And the Supreme Court actually, like, relies on this principle when it's cutting back on federal power, like in Sackett versus CPA, which is a case about the reach of the clean water. Act where the court says that regulating water pollution and harms from water pollution is traditionally something that states do. And so we're like wary. We, the court is not we. Everyone else is wary when the federal government tries to do too much there. And this case is like the opposite of that where Suncor and the U.S. are arguing that states and local government shouldn't be able to protect their citizens in the circumstances of this case. And the reasons they give for that are like totally disconnected from the again very basic idea that this is a traditional

role of states that we should be hesitant to displace. I think they argue that because there are like so many sources of greenhouse gas emissions that a suit even against one oil producer is like actually in disguise a suit against every oil producer and so you're like trying to do too much or like because everyone is harmed by their cabal you can't single one out. It is giving like Spartacus. Like I am ExxonMobil. No, I am Exxon Mobil. Right.

Totally. Or like it's giving like too harmful to solve. Yes. Which is a weird way to think about. Again, state police powers being like disabled precisely when they might like committed to us. Like committed towards so big and there's nothing people can do about it. That's the dare. Yeah.

So it is as you say like really turning this basic principle. upside down. There was one person on the court who seemed very receptive to this whole line of, you know, too big to be caught by the states. And that was one Brett Kavanaugh who tried to float a theory that, Leah, I actually think this might be your fault. I think you may have handed Brett Kavanaugh this theory on a silver platter in our last episode when you suggested that the court might just make up a theory like the major questions doctrine, but for climate change. So let's take a listen to Coach Kavanaugh. On the tobacco and opioid question that Justice Kagan asked, and she alluded to this, I thought the answer was that this court has consistently said that air and water pollution are different in our federal

enclaves. So it's statements like this as to why he's not allowed to sit at the big kids table at Thanksgiving. air and water pollution are different as not an argument. It is just an assertion. And the seriatum transition, like during these oral arguments from Justice Kagan to Justice Kavanaugh when Gorsuch doesn't ask questions, is so rough on my brain cells. Like here, he is trying to answer her question as if she thinks there is a problem that he can obviously solve with his brain. When we all know, right, he's limited to finger paint. And if I sound like I'm already over Brett Kavanaugh's P-brain on week one of the Supreme Court, I don't think I'm alone. I thought it sounded like Elena Kagan also may have already had it with Kavanaugh's stupidity. He tried to trot out a series of

cases. He was alluding to that in that statement about how air and water pollution are just different and like we've said so. And he referred to those as a wall of precedent. And later Kagan said, I mean, whatever you think about the wall of precedence idea. I mean, Shorter Elena Kagan, stop trying to make the wall of precedents happen. It's not going to happen. I also thought when he kept saying the wall of precedents that it reminded me of Disney World and the hall of presidents. And I was like, oh, he's confusing the two, right? He's probably, but it's all animatronic presidents. What if we just had an animatronic court? And we could reprogram them. That's the court expansion we might need. Okay. So, Kurti, you are right at Earth's justice. You do the law of air and water pollution.

Is there a wall of precedence that suggests air and water pollution, right, is just beyond the can of states to do? Yeah, I mean, it's just like a kind of oversimplification of a series of prior cases. From Brett Kallin. What are you talking about? No, no, that can't be. Stop. I mean, there are like cases that say, you know, if a state is suing another state over pollution, like instead of the state's going to war with each other, they're allowed to sue each other at the Supreme Court. And there are cases that say if somebody in one state is suing a polluter in another state, they have to sue under the law of the state where the polluter. is. Those are all like pretty specific rules that get kind of crafted together to create this principle of like air and water are different. But it kind of raises all these, again, raises all these questions about like, when are they different and why are they different? And it's this phrase like air and water and their ambient qualities gets tossed around a lot, which I find confusing because I think ambient in this context just means like things that move.

Well, it could also mean they're abstract like women's ideas, right, about how to run their lives are abstract, air and water pollution, also very abstract slash ambient. Right. Well, I mean, if it had just been a jar of air pollution, an ambient jar, it might have been okay. Right, or like ice. Right. Correct. Correct. Yeah. You sure you need that job at Earth justice? You don't want to be the fourth person on strict scrutiny, Curti? So back to this case, you know, Curti, you had kind of talked about this inversion of federalism, Whereas the justices often use this idea of state's police power to limit what the federal government, you know, can do in order to protect the scope of state's authority. Whereas here, right, they are going to limit the scope of state's authority, right?

So not usually how this is supposed to work. I do think that part of the problem here in this case that's informing kind of the insanity of this is the absence of the federal government during Republican presidential administrations. in this space and the forced absence of the EPA, you know, the environmental protection agency because of the Republican-controlled Supreme Court. Like in a sensible world in which a presidential administration actually attempted to solve real national problems and a world in which the Supreme Court allowed agencies to solve national problems when Congress had given them the authority to do so, it might make sense to say the Clean Air Act as a federal statute preempt state regulation of air pollution in order to establish. national rules, regulations. That's not real federalism. Apparently, right? Because like this is a national problem, right?

It might be difficult to pinpoint sources, right? Or like which source is exactly causing what. But the court has so weakened the Clean Air Act and Republican presidential administrations so nullified the Clean Air Act and Clean Water Act like during their terms that it just seems nuts to say that this law, which again, Republican administrations nullify, they do not enforce or use to address climate change and that the Supreme Court has hobbled somehow prevents states from attempting to address climate change either. I mean, it is kind of a total mindfuck. I was teaching the Commerce Clause last week. And again, there's so many decisions in the

modern Commerce Clause arena that focus on this question of traditional state sovereignty, like making sure the federal government doesn't intrude on state police powers. And here, states trying to do something and, you know, here we are. Turns out the real police power was the courts after all. There's also an argument here, Kerti, that there isn't jurisdiction in this case for the court to even take it up. So how do you view that issue and where do you think the justices are going to go? Is this an off ramp for them? Yeah, I think post-argument, it's still an off-ramp for them. And I guess maybe it's worth like backing up and saying what the issue is. But when the court took this case, Suncor and the oil companies wanted it to address this.

like constitutional issues that we've been discussing, but the court added in a question that it was, it's supposed to resolve about whether it can even hear this case at all, whether it has jurisdiction. And at this point, that question basically simplifies down to whether the Colorado Supreme Court in this case issued what's known as a final judgment. And that's like lawyer speak, I guess, for the idea that when the Supreme Court steps in, it's supposed to review the end of the case, like when the case has been resolved. And in this case, that's not actually what happened here. The Colorado trial court denied the oil companies motion to dismiss.

That's usually an interim order because, like, the oil companies could win at trial. And then it won't matter whether their motion to dismiss was denied. Or summary judgment. Yeah, totally, yeah. And so Suncor went up to the Colorado Supreme Court and they said, like, can we invoke an exception? And can you hear this appeal now? And the Colorado Supreme Court did. And so the question in this case is, like, is that a sort of hermetically sealed?

proceeding that creates a final judgment that the Supreme Court can review, or is that really like part and parcel of the ongoing trial court proceedings and therefore not final? And it didn't really seem like there was a ton of interest in that question at argument. So Justice Thomas asked everybody about it in his kind of like first question period. And then Justice is so to my Ryan Jackson asked about it, but they're like weren't a lot of follow-up questions. And it sort of seems like it's probably there that they have to address it to reach the merits. And if they can't reach the merits because there is a recusal here, I guess there's always the potential for something weird to happen when there are eight justices. It's an off-ramp for them to

avoid deciding the case and adhere it the next time it will accompany ask them to. I want to just like just flag, though, for our listeners, whether the court takes this off-ramp or not. This is how the oil companies answered the question of why this court, why now, given that other defendants might not be able to get into court in the mine run of cases. So let's take a listen. And I would submit that given the extraordinary magnitude of these cases, where in each of these cases, plaintiffs are seeking billions of dollars of damages, that we need an answer to this question sooner rather than later. And just as a matter of judicial...

Cash money. Does this bar this court take cash? I mean, that part, right? I mean, like, whatever, could it be more plain? Basically, big money gets to take a big leap up the food chain. Big money interest with big money at stake means, obviously, you get to go to court and be heard, whether it's too early or not. And, you know, if big money and big oil paid for a court, then that court better pony up. They're like the Eric Dieters to Kimberly Gilfoyle's Supreme Court. I gave you $300,000 and I've got nothing.

I'm not not even stupid. Okay. We're getting ahead of ourselves. And if you did not understand that reference, fear not, it will all be explained by the end of this episode. It will no longer be abstract. It will be true. Curti, were there any other notable observations that we miss that you did not since you're so deep into this case? Yeah, I mean, I suspect you guys miss nothing.

But I will say one thing that I love slash deeply hated about this argument is that both Suncorps. and the lawyer for the U.S. placed so much emphasis at argument on this case called National Port Producers Council versus Ross, which is a case about the Dormant Commerce Clause, which is another clause that doesn't actually exist in the Constitution and exists as doctrine that kind of restricts what states can do under state law that might have an effect on things that happen outside of the state whose law it is. And Sencourt's lawyer at some point actually says, can do no better than National Pork producers to support his extraterritoriality arguments. And I find that so wild because that is a case where the court rejected an attempt to use

the same word, the words extraterritoriality, to create like a freestanding, hazy, constitutional rule that would allow you to strike down state laws. And the court really seemed to be signaling like we're uncomfortable with the like making it up tactic. And so we're going to like read our precedence narrow and kind of signal that we shouldn't be doing that anymore. And then the oil companies, they're like, just do it and be legends. They're like, no, but this is a great case for us. And I guess, like, I'm going to be maybe a little petty and say, like, in addition to the fact as a methodological matter, this case seems to reject what they're trying to do here. It's also a case that's like a footnote

that it relies really heavily on that some poor doesn't even cite until its reply brief. So it's like, probably it's not that important and like helpful for you if you didn't bring it earlier. I don't know. It's just wild. But I think it's like probably emblematic of how strong the case is for their extraterritoriality principle. So an additional observation, you know, Melissa, I'm sure you had to take more than one drink during oral argument because as you predicted would happen. Neil Gorsuch made it very clear that he is open to revisiting the important decision in Massachusetts versus EPA. You know, the decision that said EPA had the authority to regulate greenhouse gases. You know, he referred to that issue. That is whether the EPA has the capacity,

the authority to regulate greenhouse gases, an issue that Massachusetts versus EPA clearly resolved, as, quote, hotly contested and said he would, quote, take no position on it. Sir, this is not your Supreme Court confirmation hearing. All right. Let's wrap this up. This is a lot to listen to. Not you, Kurti, this oral argument. Any final thoughts here? Anything you want to leave us with? No, I just really never want to hear the phrase air and water in their ambient aspects ever again. That's my takeaway. Kind of like these abstract women.

Correct. From your lips. One final thought from me. Curthy, don't take this the wrong way, but despite the looming climate catastrophe and this court's apparent willingness to facilitate it, I kind of enjoyed listening to this oral argument. I really did. Not the content, obviously. But this was the rare occasion when a Supreme Court oral argument did not make me want to self-emolate. And I really couldn't put my finger on why for the moment.

And then it occurred to me. I didn't have to listen to Samuel Alito talk during this oral argument. It was substantively awful, obviously. But somehow it was made better by the fact that he wasn't in my ear holes. And I thought that was a small mercy. And we got to count our gratitude. And that's mine. I didn't have to listen to him as I listened to all of this. Since we're doing silver lining, small blessings, even without Kate here, I guess I'll leave you with some of what I appreciated about this oral argument, you know, in addition to the absence of oil and gasoline gasoline. And that is Elena Kagan going after male lawyers who do not understand that is she. She is the one with the life tenure. So let's play that clip. My clock is ticking. So I want to know the answer to my question. Emphasis on my.

My. Exactly. My. I'm Elena Kagan, bitch. Put some respect on my name. Right. Curti, thank you so much for taking your time and expertise and being willing to bear with our antics. We really appreciate it.

No worries. Just trying to keep up and happy to be here. You more than kept up. We'll have you any time. Strict scrutiny is brought to you by Zbiotics pre-alcohol. Some nicer plan. Some are spontaneous. Either way, I am someone who thinks that head.

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gigabytes on unlimited plan. Additional taxes, fees, and restrictions apply. SeymotMobile for details. Okay, folks, it's time to dive right into some court culture. And by culture, we mean a petri dish filled with the festering bacteria of conservative grievance, which means, folks, we need to talk about, not Clarence Thomas, not this time, but it's time to talk about Justice Alito and his new book slash polemic slash Jeremiah and the accompanying promotional tour. Maybe this is why he recused himself from Sunkor to spend some time on the circuit flogging his conservative Jeremiah, I mean book for the public. Let's begin with some thoughts on the Justice's recent interview with CBS, formerly known as

the Tiffany Network. So a good place to start is per usual with abortion and Dobbs, because guess what, folks, Shockingly, the author of Dobbs v. Jackson Women's Health Organization has a lot to say about Dobbs and related issues surrounding women, freedom, and the ability to seek life-saving reproductive care if necessary. Let's start here. In the interview, Justice Alito is asked whether overruling Roe, which the court did in Dobbs, will lead to the overruling of Obergefell v. Hodges. That is the 2015 case that legalized same-sex marriage across the United States. Justice Alito assures us that, no, the overruling of Roe will not lead to the overruling of Obergefell. I know I feel reassured. And notably, there isn't a full

clip of this on Al Gore's internet because Justice Alito probably knows what this podcast would do with an audio file of such an assertion. But it was interesting. Yeah. Okay. So we're still going to cover what he said about abortion rights and marriage. But we're going to do it in our Lido voice. Well, I don't have an Alito voice. I'm just going to recite what he says. Okay, you go ahead and do it. Okay, I'll do it like Arthur the Ardberg. Okay. Okay. Okay. All right. So do the lead in, Leah. Ready? Okay. I'll just, I'll be there. Okay. This is what Alito said about abortion rights versus marriage equality rights. Whereas with Roe, the argument was made that it had an effect on people's ideas, women's ideas about the kind of society that they were going to live in, that this would have an effect on the society. It was much more abstract than what would have would have. been involved had we been asked to overrule Obergafel. Sir, what are we doing? I'm sorry. It was just women's abstract ideas about the kind of society they were going to live in, like whether one that would allow them to live and receive health care, right?

Like, when did lives, health fertility? Or go to college? Right. Or have a job or take care of their other children? These are abstractions, Melissa. They're not real. Women can't really have those things. You know what is real, Leah? I don't know. You know what is real, Leah? I don't know. I don't know. Drilling. Drilling offshore. That's real. That's not abstract. No. Theoretical. No, it is not. Like these ladies having theories about political college, having jobs. Very abstract when you think about it. Very abstract. Am I even real? Or am I just an abstract entity? Jury's out. You'd definitely be able to join the FBI if you were a goat, Leah. But maybe not if you're a real woman. Yeah, we're too abstract for the FBI. Or rights, it turns out. That was not all Justice Alito had to say about Dobbs. He had some thoughts about the FBI. He had some thoughts about the. the costs of Dobbs. Let's roll that tape. Is there an example that you can think of that a case that required particular courage?

Well, the leading example is Dobbs. I think that required courage by all of the justices in the majority. I mean, there are cases that have resulted in the loss of old friendships. Really? That's something that you have to live with. But you've lost friends over Dobbs. Yes, sure. And it was all worth it to keep those ladies under my thumb. I was just about to say, right news. Sam Alito has friends. Real buriedly there. But also, the costs are you lost friends, not women lost their lives. I guess friendship, his friends aren't abstract. They're real. But women.

There are all those friends from the concerned alumni of Princeton. But they probably stayed friends afterwards. Exactly. Yes. Like, no women at Princeton. No woman getting abortions. Justice Alito did broaden out his thoughts, you know, beyond abortion and his friends, his so-called friends. He also had some thoughts on the court's role in a constitutional democracy. So take a listen to this. We are not part of any political movement. And we are not attempting to further any political agenda. I don't know about you, Melissa. I found that super reassuring, right?

Like all my takes wrong. I take back everything I said. They are not furthering a political agenda. Boom. Ed Meese would like a word. Right. Exactly. Ed Meese.

Ronald Reagan. Paul Weirich, right, Heritage Foundation. Leonard Leo. Joe, right, the entire federalist society could go on. But we are somewhat time limited. Nothing to see here, folks. And as to his future on the court, when pressed by the intrepid CBS interviewer, just as Alito said that he might consider the whole prospect of retirement but would decide whether to retire.

every year he would make a decision every year. And I guess, sure. Sure. Sure. I guess. Okay. So that's a brief kind of foray into the press tour. But maybe now we can dig into the book or air quotes book slash whatever this is. The title arguably says it all. It is so ordered an originalist view of the Constitution, the court, and our country. Time out here. Yes. Is he an originalist? Well, this is going to end up being one of the real mysteries of the book, Melissa. And so listeners, we're going to take you on a real who-done-it mystery about whether Justice Alito is, in fact, an originalist or who the real originalist on the court is. So you ready? Nancy Drew and the tale of the true original of. Well, Nancy Drew is abstract. Let's think Hardy Boys. That's true. Correct. Encyclopedia Brown. Right. So I. Oh, not Brown race. Can't think of it. Oh, yeah. Encyclopedia White. Is there one of those? Better. Better. Better. Okay. I did take one for the team and suffered through the entire Elito book.

There we go. Melissa, on fire. Check the minute. But this book is mostly just a collection of speeches. Alito has given, which I had already read because I'm a glutton for punishment. The book is an edited, updated, updated collection of those essays. It's an anthology. Yes.

It's an anthology of grievance. Yes. So I justified skimming the book to myself on the ground that I, I would be putting in the same amount of effort to reading the book as he put into writing it. Well, you know who wasn't going to just phone it in on this book? I have an idea. Our friend of the pod, Commander Professor Steve Vloddick, appears to have actually digested this book and doesn't have cyclospora, so he lived to tell the tale.

So let me give you some context, listeners. For some reason, Commander Professor Yoda of the Supreme Court won Stephen I. Vladik. lives rent-free in Justice Alito's Fox News pickled head. In this book slash Palomac slash Jeremiahid, Justice Alito calls Steve, among other things, quote, the most prolific academic critic of the emergency docket. That's actually true. So props.

That's just one of the things, you know, he calls Steve. Just one. Alito inexplicably sometimes chooses to refer to Steve as Professor Stephen Vladick, whereas others it's Professor Stephen I, Vladig. Zero idea why toggling between the two, but... Because the I in Steve and I, Vladek stands for in my head. Great theory. I did definitely come away from this chapter with the firm impression that Sam Alito is at least a stage five clinger on Steve Vlatic, the things you learn. Steve had a response.

The more you know. Which is perfection. The first sentence of Steve's response is, quote, in the pre-publication galleys to his new book, so ordered. Justice Alito spelled my last name inconsistently. end quote. I cannot recommend Steve's response highly enough. Please, please, please check it out. Spell check it out. That must read response aside. I think we have to highlight some of the things to which Justice Alito has subjected us. Shall we dig in? Yes. So we don't want to, nor will we try to duplicate the ground that Steve Vladick covered on the shadow docket in his post. But Alito has this petulant line when he purports to answer the question, what procedures do we follow in these shadow docket matters? And he says or writes, quote, remember that these are emergency applications, emphasis on emergency. To which one wonders, is that what the ballroom construction case was about or the government's ability to send people to. third countries instead of detaining them? Like, those were emergencies?

It was an emergency because we had to torture people. Right. Exactly. We had to send them to third countries where they might be trafficked. And it was definitely an emergency that the ballroom could not hold all of the people that this administration wants to get in one room to buy crypto. Five alarm. Anyway, Alito, obviously, gave an excerpt of the book to his favorite fair and unbiased outlet. That would be the Wall Street Journal, where he encouraged. judges who fetishize the idea that originalism leads to results that they dislike to, quote, shed this insecure mindset. I almost feel like he's asking them to get therapy, which is, sir, heal thyself first. Well, and that insecure mindset that he's referring to, I think he's

talking about you, Neil Gorsuch, and also Antonin Scalia. So Alito even mockes those judges who, quote, may actually welcome occasions when their original. analysis leads to results they dislike. Because he suggests those judges are so worried that they might be, quote, subconsciously engaged in results-oriented decision-making and judicial activism. It's like, just go with it. Exactly. Don't worry about it. Just do it. Just go with it. Do it. Do it if it feels good. Do it feels good. Anyway, Justice Alito went on to explain his preferred approach to constitutional interpretation, and it is this. Unless a theory, quote, is widely viewed as generally producing good results, according to Justice Alito, the theory is no good and should be rejected. Let's roll that back and think about it for a minute.

So what he's basically saying is that his favored approach to constitutional interpretation is baldly results oriented. Yes. I mean, that's what I got from it. And that's awesome, right? That's the way it should be. Because this was just sounds right? This was just one of the OMG. admitted moments in this book because, and then there was this point at which he is deriding a New York Times poll that had asked readers to indicate whether they, the readers, agreed with the results of some Supreme Court cases, which Alito protests the poll because, quote, the whole thrust of this question is fundamentally at odds with the traditional conception of judicial decision making. The issue in Carrhart, that's an abortion case, was not whether the justices personally favored or opposed a ban on late-term abortions, end quote. Except did you read your own book?

Like, my guy, you just said. You just said you are supposed to be evaluating your jurisprudential theory based on whether it produces good results. But so here's the thing. It's whether he thinks it produces good results. Good according to him. Okay. That's the rub. The abstract idea is of abstract to people.

They don't count your times. The abstract readers that women ascribe to reproductive freedom. That's not what he's talking about. Okay. Okay. Not that we needed this, but I think we did get maybe a little confirmation. This is debatable, perhaps, but I think we did get some inkling that perhaps Justice Alito is a friend of the pod, or at least hate listening in his spare time. So he writes, quote, originalist judging requires a degree of humility, but it also demands boldness to go where the original public meaning leads and self-confidence in the face of humility. of a hostile media and legal academy. Is that us?

Is he talking about us? Here's the thing. I actually think women's voices might be too abstract for him to hear, which is why Steve Vlattuck features so prominently. Right. Like he can hear those real voices, those men's voices, the other stuff. Right. Like too abstract, right? Justin has registered that the eardrums just do not process.

Like, he doesn't have that dog hearing. Right. I bet Cash Patel hears us. Right? Don't worry. We'll get to cash later. Cash money. Does this bar take cash? It might. Okay. Justice Alito also describes the quote-unquote early originalists as, quote, beleaguered because their theory was, quote, ridiculed as intellectually indefensible, stupid, or disingenuous. And I think this actually tracks both in terms of its substantive veracity, and in terms of his persecution worldview.

Never change with that persecution complex. Persecute alito. Persecuccio. I'm so we shopping that way. Persecute alito. Persecute alito. Okay. Got it. I think that's right.

Right. Again, in case you listeners had any doubts that we are dealing with a dewy but thin-skinned man, a section of the introduction begins thusly. Quote, a Harvard Law School professor once wrote that freedom of religion has been a pet issue for me since my days on the Third Circuit. And I take that as a compliment. So I was kind of joking when I said I skim the book. I'm basically incapable of skim reading, right? I always have to read everything, including the footnotes. And so I went and looked at what Justice Alito cited for this in the footnotes. And he cites get this an op-ed that appeared in

the Fort Worth business press. Does this guy comb the entire internet to find people criticizing him. He's got a Google alert, for sure. But if women say things, can you even hear them? Does it even make a noise on the internet? Justice Alito may have taken our rights, but he did not take our voice. He's not the sea witch. He's not the sea witch. Okay. Yet. So someone tell Amy Coney Barrett. Throughout the book, there is this dissonance that Sam Alito just does not seem to be able to appreciate. So he is regularly decrying the supposed intolerance. But he is also intolerant of people who reject his views, specifically about LGBT rights, and he castigates them for their views. So according to

him, those people are intolerant bigots because of what they say and what they believe. But Sam Alito, by contrast, he can say and think whatever he wants and make those views the law and no one can tell him shit. Like, no one can call him an intolerant bigot, right? Because that would make them an intolerant bigot. You understand. The people calling out the racism are the real racist. Exactly. Exactly. So many parallels. And look, he said a lot of questionable things in the past, specifically about the extent to which marriage equality is flawed and whatnot. But I thought he really ratcheted it up in the book from at least what I recall seeing, hearing, reading before. So for example, he calls Obergefell v. Hodges, the marriage equality decision that is a frequent target of his ire, quote, perhaps the decisive point in our nation's turn against religious liberty. The gazed, the country to turn against religious liberty? Like, what the fuck? Whitney doesn't really mention what has followed in the wake of 2015 and Obergefell. How has religious liberty done in the last 10 years, Sam?

Trinity Lutheran, Carson versus Macon, 30, Espinosa, Masterpiece Cake Shop, Fulton, I mean, Tannen versus Newsom. This term, I mean, we might just like blow the establishment clause. Oh, yeah. I mean, we are about to eat that baby into the sun. strict scrutiny is brought to you by Bookshop.org. Would you be surprised to learn that we're living in a resurgence of independent bookstores? Not me. There are more than 1,000 new stores that have opened in the last five years. As they should,

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such an endearing one. I've also loaded up on the unedited journals of Emma M. Lyon. Can't wait, that one's a recommendation from Melody. There's always a great book that you can get from a great local independent bookstore. And you can always get that great book to your door and support your local independent bookstore by getting it at bookshop.org. Use code strict 26 to get 10% off your next order at bookshop.org. That's 10% off at bookshop.org with code strict 26. This episode of strict scrutiny is brought to by Alloy Health. Here's something nobody tells you. The skin changes that start in your 40s aren't just aging. They're hormonal, specifically estrogen loss. Estrogen naturally helps maintain collagen, support elasticity, and keep skin hydrated. As estrogen declines, skin gets

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Your menopause specialized doctor will help you build a skincare plan for your needs. Plus, you get $0 unlimited messaging with your doctor. Head to m.a-a-l-l-o-y-com and use code strict to get 20% off your first order. This code is valid on products only. These are compounded products, not subject to FDA approval. We should also talk about some of the interpretive methodologies that Justice Alito runs through here. So both the Wall Street Journal excerpt and the. book have an incredible typology of the various strands of originalism. But these are not the strands

of originalism that are typically discussed in most academic circles. So we really wanted to run through these and highlight them for you. So first off, there is what Justice Alito terms, quote, Akarian originalism. And that is like Icarus, the boy in Greek mythology, who flew too close to the sun. According to Justice Alito, quote, The originalists sometimes lose sight of what constitutional text would have meant to ordinary people when those provisions were adopted. And interestingly, to your point, Leah, his prime example of this misguided Akarian flying too close to the sun originalism are the originalist defenses of Obergefell. I might have looked forward to the originalist defenses of AR-15s in Varemonti that are sure to happen. But who am I?

Speaking of flying too close to the sun, right? That analogy was so strained. I was like, sir, like, couldn't you have just, like, gotten an editor or something? It's like, he just saw The Odyssey. He was like, hold my beer. Yes, exactly, exactly. I'll show Emily Wilson how to do, right? Greek mythology. That was just one variety. Another is archaeological originalism, which is, quote, the opposite of Akarian originalism. Archaeological originalism, according to Justice Alito, borrows deep into the legal past in search of an artifact that will indisputably resolve a difficult issue, even though 20, 21st century English speakers can read our Constitution without difficulty. I'm for some reason thinking about reading the Constitution and what it says about liberty and like feeling quite strongly that that would allow me to make decisions about my reproductive health care and body. And then someone

went looking in the 1800s treatises and court decisions for an answer. Is this ringing any bells too abstract? I can't hear your voice. Okay. You're a lady. Sorry. I actually thought this was such a missed opportunity to show off your knowledge of Greek mythology and maybe call this Hadean originalism. Oh, yes, yes. I mean, Persephoney originalism, I don't know. Come on. Like, come on, playboy. Show me what you got. There is also, according to Justice Alito, speaking of Show Me What You Got, show it to me in black and white originalism. According to Justice Alito, show it to me in black and white originalism, fails to account for, quote, times when an important originalist principle isn't set out explicitly, but emerges from the Constitution's structure.

Like, say, for example, and he quotes here, the presidential immunity we recognized in Trump versus United States. Hmm. Yeah. He's covered all his bases. Exactly. Exactly. That definitely explained that decision to me, right?

It just emerged from the Constitution's structure. Tell me more about the unenumerated rights having no roots in the case. Or tell me more about abstract ideas, ideas that are too abstract. abstract to really be grounded in the Constitution. So Alito rejects these and other versions of originalism in favor of something else. Now, what he favors isn't explicitly elaborated, but he makes some broad gestures that suggest what he might mean. So he rejects the idea that originalism is about restraint and instead suggests it, quote, sometimes called for bold action. One of many OMG he admitted moments. And then Alito comes out swinging in favor of

Adrian Vermeul, Harvard Law Professor, arch critic of originalism. Now we get to the mystery, the Nancy Drew, the Benoit LeBlanc of it all. Because this is odd for a book that is ostensibly in support of originalism or Alito's version of it to be praising one of the most prominent arch critics of originalism. Elito's book is actually called So Ordered, an originalist view of the Constitution, the Court in our country. Vermeul favors common good constitutionalism. which he says isn't originalism. But he says common good constitutionalism. This is, you know, Vermewell, draws from Catholicism and indeed has been justified in part on the ground that it would and should lead to results supported by traditional conservative Catholicism. Some have also argued that this whole strain of common good constitutionalism actually leans toward a form of governance that may actually abandon traditional democracy in favor of something a little more theocratic, if you will. So he glosses over that, but he definitely seems on board with the Catholicism, which is, again, like, we knew this.

OMG, he admitted it, though, right? Like, he just put it down in writing, Stringer Bell, again, would like a word, sir. I mean, again, this was like when he wrote that defense of Martha Ann and the upside down flags. And she's like, you know, she has her own view. She has her own life. And it was just like not like these tricks out here with their abstract ideas about abortion, right? Exactly. He's just playing in our faces.

This whole book is playing in our faces. It is. And that concludes our recap of said book, word vomit, whatever it is you would like to call it. Leah read it, so you don't have to. Right. It could be your potential TP. So there you go. But then you'd have to buy it.

Yeah, that's true. Well, if someone accidentally gives it to you or if you find it in a little free library. Some other news, and we got some dispatches from the Beast Coast. And that means we are bestirred to extend our heartfelt congratulations to FBI director Cash Patel on the occasion of his recent engagement to a human woman. The same one he allegedly has been schlepping around on a taxpayer-funded FBI jet. Again, many of the outlets who are covering these impending nuptials have focused on the fact that Patel has been toting his girlfriend around the country on a government-funded jet. But I really think that buries the lead because to me, the really interesting aspect of all of this is, as we just alluded to, is that Cash Patel is marrying an actual member of the human species. So let's hear it for Team Homo sapiens. Seriously, congratulations, sir. We're so happy for you and the residents of your local humane society. There is more in this segment that mentally I am calling the beast in me once again. And that is the Wall Street. journal's bombshell story about some of Kimberly Gilfoy's corruption.

Alleged. Alleged. Alleged corruption. Yet documented in Signal texts alleged corruption. But the story anyways is this. Gilfoy is... It might be abstract, Leah. That's a lady.

That's true. Abstract alleged corruption. Story is Gilfoy is Don Jr.'s former fiancee and now ambassador to Greece. And as Gilfoy was prepping for her hearing to become the ambassador, she reached out to a Trump donor on Signal. Why? She needed $100,000 to cover a debt she owed to American Express. And what follows can only be described as Akarian constitutionalism flying way too close to the sun. Or anti-stringerbellism, basically. So Guilfuel was really, really trying to avoid leaving a paper trail, it seems. She wrote, quote, it won't show up anywhere if you wire money to American Express.

She followed these instructions up with a very plaintiff, please. Gilfoyle was talking to Eric Dieters, who had been seeking her help in getting the Trump administration's attention on his own personal tax and legal issues. And he apparently, allegedly had promised to pay her $1 million if she was successful in lobbying on his behalf with the Trump IRS. Deeters was in the Trump orbit. He had run unsuccessfully for Congress and for governor, and he'd hosted a number of events at which various Trump children and Gilfoyle were speakers. So he's definitely someone with whom she was familiar. He's in it to win it. Back to Beast Mode.

Gilfoyle really wanted her balance down before her confirmation hearing. Quote, honey. But wait, wait, can we talk about this? Just one second. Lots of people have had balances. I mean, who are we to judge? Yeah, I know. It's credit card.

I mean, right? Like, this is America. come on. I mean, people have student loan debt. It's almost like people needed waivers or a modification of excessive debt. Almost, but not quite. Almost. All right. Continue. I'm sorry. No, no, no, no. So Gilfoyle wrote, quote, honey, please, I need you to get this done for me today, adding some prayer hands. She had been offering to lobby for him in the Trump world, including by getting him on Tucker Carlson's show. But she emphatically didn't want Dieters to make a record of any of this. So she wrote, quote, Eric. I really wish she would stop papering, all these things. It's really dangerous and not helpful. While you could simply just call me on Signal, what a nightmare, you'll literally cost me, my ambassadorship.

Stop writing. It was hers to lose. Dieter's did not make the payment as requested because, according to Dieter's on this text exchange on Signal, it would cost him his marriage, to which I say, yes, sir. That is actually probably correct. He writes, you're needing $100,000 urgent, unfortunately, is not going to work. He writes later, I can't do this without getting a divorce. Correct.

I love that Eric Dieter's is like, ma'am, I want to stay a husband and not become a husband. It's not the corruption, right? It's my marriage. I do it but for my wife. If only my wife weren't here with her abstract ideas about marital fidelity and financial profligacy, it's just like she won't let me pay you up. Or maybe she just have questions. Like, why are you paying Kimberly Gilfoyle's credit card bill?

What are we doing here, sir? Deiders was also annoyed that Gilfoyle didn't deliver. He writes, quote, I have paid you $300,000 over the year. As of this memo, I have not received one. favor. I am not naive or a sucker. I need results. He admitted it. I know. Like, sir, it was really just a tip. Right, exactly.

Exactly. It's not a favor of a tip. Just a tip. Just a tip. Just a tip. And apparently your services weren't that great. Right. You didn't get a tip.

The Wall Street Journal wrote, quote, he said in a series of interviews that Gilfoyle's lack of results left him disenchanted with the Trump administration, even though he mostly supports its policies. He's like, you guys were supposed to be corrupt in addition to fascist. I mean, no, I mean, this is basically like. Like everyone in Maga Land only, it's about the IRS and tax results as opposed to the price of gas. Right. And X. Yeah. You are every American, sir.

Yeah. Except not. As these anecdotes suggest, Dieter's himself seems to be quite a character. He had been banned from a courthouse after threatening to burn the place down on social media. And the Kentucky bar had suspended him not once but twice. I mean, third times a turn, Leah. Anyway. Again, let's get back.

back on the rank corruption allegedly beat. The president of the United States, Donald J. Trump, has decided to indeed try to go ahead and do the thing. He's announced a committee that will be looking into allegations that Federal Reserve Governor Lisa Cook committed mortgage fraud. Recall that the president attempted to fire Lisa Cook via a truth social posts, which the Supreme Court last June said was insufficient as process for getting her out of her. position. But the court, of course, true to form, did leave the door open to Trump trying again. And this time putting some apparent procedural lipstick on a pigish firing of the only black woman who sits on the Federal Reserve Board of Governors. So that's what the president seems to be doing with his

time. You know, perhaps forcing the court to bless the charade of all of this. Please think of the travel ban when John G. Roberts decided that despite all of the discussion of keeping the Muslims out of the United States, the third iteration of the travel ban was not mired in the stink of rank Islamophobia. So he's either doing that or he's basically sidling right up to John Roberts and daring him to stop him. So let's see. John Roberts is ready to do that. We also just wanted to provide you a very quick capsule picture of, just some of the grotesque state violence, right, that has happened over the last week, just because I think distilling this and quickly lumping it all together should hopefully give people a sense of just where we are. So bear with me. Pete Hegsaugh announced the federal execution of Fort Hood shooter Nadal Hassan by firing squad, and Hegseth announced that that will be live streamed. The last officially acknowledged public execution, was a lynching in the 1930s. Also, Hassan is paralyzed. On the execution topic, Krista Pike,

survived the state's attempt to execute her and is recovering. Her lawyers released a statement that described the turnaround in her health as profound and credited the medical team. She was unconscious, you know, intubated and on a ventilator. Then she was able to take some limited steps and is walking with some assistance now, but sustained significant injuries to her arms, which are still regating movement after being blistered and burned. The statement notes that, quote, Krista is dealing with the profound psychological trauma of having survived a failed execution, and that big questions remain about what long-term effects this might have on her, including cognitively. Curtis Flowers died at 56, suffering from complications from diabetes. Flowers had been tried six

times for the same murder. Each time with the prosecution ensuring zero or very few black people were on his jury. This is the Flowers of Flowers v. Mississippi. When the Supreme court invalidated one of those efforts. Also, the president of the United States attempted to incite a race war, posting on true social that the once great state of Minnesota is being taken over by Somali immigrants. There is violence. The people of Minnesota must fight back, he says. Again, like, you add all of this together, and they are telling you who they are, they are telling you what they want, and they are showing you. And it is just so, I don't even know how to describe it. The last part of this truth social post exhorts the governor of Minnesota

and the mayor of Minneapolis to, quote, immediately ask for federal help and leave the rest to us. What could go wrong? Right. Seriously. Anyway, enough. Yeah, enough. I hate this timeline. Yes. So that's it for the regular episode, but stay tuned for a conversation Melissa had with Professor Bernadette at Johanee about her book, Plundered. Strict scrutiny is brought to by Three Day Blinds. Is listening to what's going on in the world making you wish you could block out the entire world? Same. It at least made me want more privacy, which is where Three Day Blind comes in.

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Head to three-day blinds.com slash strict for their buy-one, get-one, 50% off deal on custom blinds, shades, and drapery. For a free, no charge, no obligation consultation, just head to 3dayblinds.com slash strict. One last time, that's buy one, get one 50% off when you head to the number 3D-Y blinds.com slash strict. So listeners, on this podcast, we often talk about state-level constitutionalism as a means of counteracting the deficiencies of federal constitutional law. As we have noted, state constitutions are often more generative and protective. of individual rights than is the U.S. Constitution. But we want to be clear. State-level constitutions are not a panacea. They can also be a source or means of profound injustice for marginalized groups. And to put a finer point on that, today we are joined by Professor Bernadette

Atouhene, the Francis R. and John J. Dugan Professor of Law at the University of Southern California. Bernadette is a property law scholar whose work focuses on land stolen from people in the African diaspora. Her most recent book, Plundered How Racist Policies Undermine Black Home Ownership in America, examines how local governments, and particularly, the city of Detroit, have used their lawful power to dispossess black homeowners through unconstitutional property tax assessments and mass foreclosures. Bernadette, welcome to strict scrutiny. I could not be more excited to be here, Melissa, on the podcast and with you. Well, I'm so glad to have you here. You're worried.

work is so interesting and urgent in this moment. And as I just said, much of your early work focuses on property law and land use in Africa, so outside of the United States. What prompted you to focus here, stateside, and specifically on Detroit? So my South Africa project, although it was wildly successful, we had the Deputy Land Claims Commissioner come to the official book launch in Johannesburg and declare that the land claims Commission would be adopting 90% of books recommendations. So although it was wildly successful, it left me just troubled because I was looking at Black victimhood.

And so I said, well, in my next ethnographic project, I want to look at Black agency. And so I decided to study squatting, which is when vulnerable populations are taking land instead of being taken from. And so I applied to the National Science Foundation to study actually squatting, The last largest urban squatting phenomenon in America was on the lower east side of New York. But what's currently happening in Detroit far outpaces anything that ever happened in New York. And so I applied and won a grant to study squatting in Detroit. I teach first year property and I teach my students that there are two kinds of squatters.

Number one is what I call a takeover. It's what normal people think of as a squatter, someone who rolls onto a piece of property with no prior legal relationship to that property. But I also teach them about holdovers. Those are people who had a legal relationship and fell out of it. So I interviewed both populations. And when I was interviewing the holdovers, one after the other, after the other was saying they were the owner and they were tax foreclosed and stayed waiting for the new owners to arrive. Now, at that point in my career, I knew quite a bit about mortgage foreclosure, but I didn't know much about property tax foreclosure. I don't either. What is a property tax foreclosure?

Yes, and so mortgage foreclosure is when you don't pay your mortgage and the bank takes your home. And property tax foreclosure is when you don't pay your property taxes and it's the state that takes your home. And so this is an act of legal violence by the state that should be exercised with extreme caution. And we find that in Detroit and many other cities, this power is being exercised not with extreme caution but extreme recklessness. My first study found that between 2009 and 2015, in each of those seven years, anywhere between 53 and 84% of properties, the city of Detroit was assessing in violation of the Michigan State Constitution. Wow. And the lowest valued homes were the most severely affected.

And the last thing I'll say is that in Detroit, since 2009, one in three homes has completed the property tax foreclosure process. We have not seen this number of property tax foreclosures in American history since the Great Depression. That is absolutely fascinating, harrowing certainly, and it's not the most harrowing story in the book. So the book is about these tax foreclosures, obviously, but it's about so much more. So you are really telling a broader longitudinal story about black home ownership in the city of Detroit. And again, the book is a testament to your commitment. commitment to ethnographic research and surfacing the voices of the communities where you work.

I was most taken by a story that opens the book. You call it a tale of two grandfathers, one black and one white. And these two grandfathers had very different experiences in Detroit over time. But their experiences actually begin with sort of a similar kind of germ. Both are recent migrants to Detroit. One has immigrated from Italy. The other has migrated north. from the South. Both are seeking greater economic opportunities in Detroit. And for the most part, they are successful in finding them. They work at the Ford Motor Company. They're able to purchase homes. They start families. But then their fortunes diverge radically leading to this whole issue with tax foreclosure that you document. So what happened to these two grandfathers?

And that's exactly right, Melissa. Both of these grandfathers. Grandpa Bucci is from Italy, and he was a sharecropper in his place of origin and a system called Mesadria. And as you said, Grandpa Brown is from North Carolina and he was part of American sharecropping. And as you said, they come to Detroit at the same time, early 1900s. And we find that Grandpa Bucci did not have an easy life at all. Grandpa Bucci, before he made it to America, he worked in the coal mines of France. And he literally only had four fingers because his thumb got sliced off in a work accident. And Grandpa Bucci didn't have an easy life because he was Italian before Italians became white.

Okay, that part. And so now we have a situation where Grandpa Bucci didn't have an easy life, but at no point to Grandpa Bucci face racial covenants, which were covenants tucked in deeds that prevented African Americans from living in the best parts of the city of Detroit, and more importantly, from living in the suburbs or the homes are cheaper, bigger, with better amenities. Grandpa Bucci never had an easy life, but at no point was he subjected to redlining, which is where the federal government drew a red line around the African American community, saying that these communities were a credit risk, and this prevented valuable investment from coming into the community, like mortgages, home repair loans, small business loans. So although Grandpa Bucci had a hard life at no point did Grandpa Bucci had to deal with urban renewal, which because of the blight created by redlining, the federal government says now we're going to tear down entire communities to wipe out blight. But they're not only wiping out the blighted homes, they're wiping out the unblighted homes, the productive black businesses, the cultural institutions.

And so where African Americans used to live in tightly connected communities with life, lots of social capital. Now, because of segregation, they are forced to disperse into a certain number of communities. And now instead of living in tightly knit communities, they're now living in neighborhoods of strangers, which are vulnerable to disrepair. Grampapucci had a hard life, but at no point was he subjected to blockbusting, which is because of redlining, the very presence of black people could reduce property values. And these real estate intermediaries would come and say the black people are coming, white people would sell, not necessarily because they didn't like black people, because they were worried about some of them, their home values. And

they sold at fire sale prices. These intermediaries then sold these homes back to African Americans. Community would switch over for majority white to majority black in a number of a few years. And then that community would get redlined. You get the picture here. And so the point that the tale of the two grandfather show is that Grandpa Bucci, He never had an easy life, but he never had to face these layers and layers of racist policies that Grandpa Brown had to face. And I define racist policies as policies, procedures that create or sustain racial inequity. And so the book then comes to the grandchildren of Grandpa Bucci and Grandpa Brown.

And we find that Grandpa Bucci's grandson, Robert Fekano, still lives in his grandfather's home in a suburb of Detroit called Livonia, and the home is worth over $300,000. And Grandpa Brown's granddaughter, Myresia, inherited his home, which was less than $10,000. It was a money pit and not a valuable asset because of these layers and layers of racist policies. These racist policies have no shoulders on which to carry the blame. And so our job as people who love justice is to make the invisible visible, to start talking about these racist policies. I think it's such an interesting point. Like these two men, neither of whom has an easy life, they both experience racism in particular ways. As you very provocatively say,

at the time Grandpa Bucci comes to the United States, the Italians are still very much ethnic immigrants and they have not sort of transitioned into whiteness. I'm strict certainty listeners may be reminded of our discussion. Cecilia Wang's questioning and her colloquy with Justice Alito during the Trump v. Barbara oral argument where she, this lawyer from the ACLU, had to remind Justice Alito that his Italian forebears came to this country as immigrants as well. And you were telling another story where they were not necessarily the beneficiaries of whiteness and racial privilege when they got here. So the racism is underlying both of their experiences, but the divergence in their paths really come from systems, not from individual people exercising discriminatory intent,

but from systems that are put in place to maintain racial hierarchies and specifically a black-white racial hierarchy. So although they start off in the same place, they have the same kinds of misfortunes, these systems operate to make it much harder for Grandpa Brown to pass intergenerational wealth on to his children and eventually grandchildren. It leaves Marisha with a home that is substantially undervalued but heavily over tax. So can we talk about that disjunction? How does Marisha, Grandpa Brown's granddaughter, wind up with a home that is subject to such a burdensome tax liability, but that the state believes is not worth much? So let me just make one thing clear, which,

is that Detroit is ground zero for a national problem. So this property tax issue that we're talking about is not exclusive to Detroit. There's a recent study by Carlos Avinacio Leon and Troup Howard that shows blacks and Hispanics on average pay a 10 to 30 percent higher property tax rate than whites for the same bundle of goods, which equals on average about $3 to $400 more per year. So how I like to understand what's happening is that Detroit is ground zero. for a national problem. So what is going on and why are black and brown people being overtaxed? The first concept I want to really introduce here is something that we call the double bind. So I'm sure you've heard all of the stories, especially the very provocative story about the

professor at John Hopkins, who goes to sell his house, he gets one price, he moves all the pictures of his family and replaces them with pictures of a white family, and then his house sells for more. So that's what we call appraisal bias, which is black people when we go to sell our homes, our homes are undervalued. But on the other hand, Melissa, for property taxes, our homes are overvalued. And so that is the issue of the double bind. Part of what is going on is that lower valued homes are more difficult to value, meaning if you are off by $5,000 in the $50,000 home, that's not as bad as in a $500,000 home.

That's part of what is going on. But there's lots of layers as to the why, but this is what we're seeing. It's also Hollywood. Hollywood teaches us to look for the bad guys and the good guys, the black hats and the white hats. We're over-focused on intent when, in fact, what's doing a lot of damage are these systems. And so I want us to start focusing on, again, these racist policies. I borrow that term from Ibrahim Kendi. and again, any policy procedure, law that sustains or produces racial inequity.

And that way we then can get to work on disassembling those policies and laws. You've spent so much time focused on this and the disjunction between the tax liability and the property assessment. You became a Michigan property tax assessor so you could really inhabit this world in a very clear way. This concept of predatory governance is so provocative. Can you explain what you mean by predatory governance? And is it just relegated to this particular phenomenon or are there other examples of predatory governance that we see all over that

underlay our understanding of racial injustices that exist throughout the country? Without a doubt. Without a doubt. There's lots of examples. So when I talk about predatory governance, this is when racist policies intentionally or unintentionally fill public coffers. So if we look back to Ferguson, beyond what happened to our dear brother Michael Brown, when the DOJ did the report, their report, which was excellent, they found that the police in Ferguson were unconstitutionally policing black people, which led to them being fined for things and jailed for things they weren't supposed to be jailed who benefited financially, not some corrupt police officer, but the city of Ferguson itself.

Predatory governance is what's happening in Detroit in all these other cities that are inflating the property taxes intentionally or unintentionally of black and brown people. Again, who's benefiting not some individual corrupt public official, but the public coffers themselves. So what's the path forward for you all then, Bernadette? So, you know, you've been forced into this administration. Administrative Tribunal that doesn't lead to the kind of relief that you want. What's the upshot of plundered for these families? Is it simply that we now know about these systems and are prepared to recognize them and render them legible where we find them? Or is there something that you want

the reader to take from the book and your experiences with these families and apply in their own lives toward fighting for a more just world in Detroit and elsewhere. Absolutely. So when these legal avenues were closed down to us, we created something called the Coalition for Property Tax Justice, which we were looking for a political remedy. And the coalition has three goals and three goals only. Number one, to stop these illegally inflated property taxes, not only in Detroit, but throughout the nation. Number two is to stop the ongoing foreclosures in Detroit until we can assure that people are being foreclosed on for taxes they actually owe. And number three is to provide compensation. This coalition we formed is over a dozen grassroots organizations here in Detroit joined up with my

students. And we have had several phenomenal wins in this battle. Number one, we've been able to pass two pieces of legislation. One, I didn't tell you the end of the case, which is, although the Fair Housing Act claim never went for the claim for the obstructive administrative administrative administration. of the poverty tax exemption settled, and that settlement lasted for three years, and our first piece of legislation made those changes permanent. And our second piece of legislation, we created a property tax reform ordinance based on all of our community learning. I took a nine-month course and took a state exam to become a certified Michigan property tax assessor. So based on all of this information, we created and passed a property tax reform ordinance. We've also been able to

appeal the property taxes for over 1,200 Detroit residents. We've been able to transfer millions of ARPA dollars to Detroit residents to pay their illegally inflated property tax debt. And we have already been able to secure $6 million from the city of Detroit for compensation. But a study, phenomenal study by the Detroit News, shows that at minimum, they estimate that the city of Detroit stole over $600 million from its residents. So $6 million we need to understand as just a start. But the main thing we're doing is we have something called the Dignity Restoration Project. Again, you can go to Dignity Restorationproject.org.

And this is where we're seeking compensation for the hardest hit Detroiters. And those are the people who lost their homes for property taxes. They weren't supposed to be paying in the first place because they qualified for this poverty tax exemption that the city put out of reach. And so we are really focused on finding compensation for these people. And I always like to say, this needs to be the start of the whole reparations movement. You know, there's a debate in the reparations movement. Do we start with slavery? Tahanasi Cote says, no, no, no, you know, let's start with Jim Crow. And my position is let's start with yesterday when they stole these houses in this majority black city called Detroit. Because if we can't

get it right in Detroit where the harm is empirically verified and uncontested and the harm happened so recently, then the whole reparations movement is in peril if we can't get this right in Detroit. So Detroit is ground zero not only for the property tax and justice, but I believe it should be ground zero for the whole reparations movement. All right. Those are amazing suggestions, like amazing work that you're doing on the ground in addition to this fantastic ethnographic work that you are doing. The book listeners is called Plundered, How Racist Policies Undermine Black Home Ownership in America. And the author is The Uncomparable Professor Bernadette Atuhaheni. It is available right now, wherever you get your books. We love it when you get your

books from bookshop.org, where you can also support your local booksellers. Please rush over to bookshop.org and get your copy of this incredible account of dispossession, theft, and resilience. Thank you so much for joining us today, Bernadette. Well, Lisa, thank you for having me on. This was amazing. Once again, many thanks to Bernadette Atuhayni. Her book is called Plundered, How Racist Policies Undermine Black Homeownership in America, and you can get it at bookshop.org.

Let's end with some abstract things, some favorite things of abstract people. That sound good? Okay. Something not so abstract, and that's a writing by a man. And that is so unexplained, Justice Alito's non-responsive emergency docket. defense over at one first by our friend Steve Vladick. Just chef's kiss cannot recommend it enough. Please do yourself a favor and read it. Yeah. Another favorite thing, John Ossoff absolutely wiping the fucking floor with Mike Collins in the debate. Wait, wait, wait. Can I just say one thing?

Yeah, that's my family. Like, 911, I'd like to report a murder. Would you like to see a dead body? Again, do yourself a favor, pull up a mashup of those clips. I'll give you a light taste. Can't we place them? Can't we place them? No, no. They need to go look at the whole thing. You need a mashup. Okay. I'm just going to like give a quote or two as a sampler to entice people to do this. I love a sampler. Go. Okay. You hired half the third Reich to staff your office. Boom. If John Lewis were marching today from Selma to Montgomery, Mike Collins would be grabbing a billy club. Bam. Imagine running for Senate while neo-Nazi propaganda is disseminated to an audience of millions from your home. That's Mike Collins. That's my family. Like, just incredible. Could not like this more. Okay. So final favorite thing? And that is a Marquette poll, which came out with the news that overall support for Supreme Court expansion is at 53%. It is at 68%.

percent among Democrats and 56 percent among independents. Like, think how far- Supreme Court reform summer. Think how far we have come in just a few years, right? Like, if you don't think any of this batters, right? If, like, listening, talking to people agitating about this doesn't matter, moving the needle on public opinion, like, that is happening in real time. And I just love, love to see it.

One other thing, just to note, if you're not watching on YouTube, I'm wearing my newly minted self-made shirt that I'm very proud of. What does it say? No, you have to go look it up on YouTube. Okay. I actually genuinely can't see it because you're fuzzy. It says no more showgirl in green. Okay. All right.

My favorite things for the week, I've really been on this Rainbow Rowl kick. So Rainbow Rowl is very well known for her YA fiction. Eleanor and Park, maybe something you might have looked at in your earlier days, your earlier days as a reader. But she's lately been getting into more adult fiction and critically focusing on sort of midlife paramedopausal women and their love interest. So I talked about a few, like many episodes ago at this point, her last book, Slow Dance, which I loved. It was very Jane Austen persuasion-esque.

I love, love, loved her newest. It's called Cherry Baby. It's just so unexpected. I just absolutely loved it. I love that the heroines are not picture-perfect people. They're like normal people living in normal places like Omaha. It was fantastic. So Rainbow Rowl, Cherry Baby, Chef's Kiss, loved it.

This week, I got the chance to go to the Argent 10-year anniversary work-friend dinner. Congratulations to the folks at Argent. on their 10-year anniversary to Sally Christensen, who's put together such an amazing community of women. That is not abstract at all. It was actually real live women, all wearing real clothes. With real clothes? Whoa. That I touched. I could touch the outfit.

Was it ambient, though? The people who were there, it was just like genuinely. Oh, I saw some of the pictures. Insane. Hillary Clinton. Yes. Right. Thelma Golden from the Studio Museum in Harlem.

Our friend, Aaron Haynes, like, just like so many people. I sat across at dinner, Deborah Kahn, who is the showrunner for the diplomat, like WTF, like genuinely gagged. It was amazing. It was just absolutely amazing. Many Chondaland people were there. I was like, FYI, I got to tell you about how to get away with murder. Like, no black lady law professor is doing this shit. I'm just talking. We're just trying to keep tenure here. So it was just fantastic. So congratulations to them. The clothes were fantastic. They've dressed us for our shows. We love Arjun. So congrats. I will also say that I left New York and went to some other places this week. I went to Boston, and while I was there, I ran into all kinds of stricties in the wilds. I just want to shout out Sajou, Elaine, Kathy, John from Newark, Claire from Zurich, Kea and Eric, Lauren, and Rachel.

Thank you so much for listening. Also, Rachel at the Argent's work friend dinner, who is a big fan of the pod and has been for a long time. It's always great to see you guys in the wild, to know that you are real and alive and not abstract. And like us, you two have questions about Samuel Lolito. And some housekeeping before we go. Election day is right around the corner, which means you only have a few days left to get in on the action. Vote Save America has launched brand new ways to get involved based on the most effective organizing tactics and tools that can actually cut through the noise. It doesn't matter where you live or how much experience you have in politics.

There's a place for you. In Club Vopro, you'll get trained on your rights and how to keep other voters safe and informed as they cast their ballots. In Club Digi, you'll boost accurate, helpful information online and get those social media algorithms working in our favor. And finally, in Club Relational, you'll learn about one of the most important organizing tactics of this era, talking to people in your life and making sure they have a plan to vote. Go to Votesaveamerica.com to learn how you can help ahead of Election Day. Remember, this whole democracy thing only works if we do. This message has been paid for by Vote Save America. It is not authorized by any candidate or candidates committee.

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