Trump Is Falling. Are Democrats Rising?

21:25Tastes good. And you're like, okay, now I'm healthy. Yeah, now you're healthy. And the rest of the day, just forget it. You know, make sure you get those things that you're not going to get otherwise, you know? Exactly, that's what AG1 does for you. AG1 has over 50 ,000 verified five-star users and comes with a 90-day money-back guarantee. Visit drinkag1.com slash crooked to get a free AG1 flavor sampler and a bottle of vitamin D3 plus K2 in your AG1. Welcome kit when you first subscribe, a$72 value. That's drinkag1.com slash crooked. Drinkag1.com slash crooked. So all this comes as we are now officially six months out from election day, and the political environment just keeps getting worse for Trump and Republicans.

22:05A bunch of new polling has Trump's approval down to the high or even mid-30s, and is absolutely brutal on specific issues like inflation and Iran, which Trump himself acknowledged. Clearly, he's been reading the polls, as we saw in that clip. But on Monday, Politico's playbook reported on a few reasons that Republicans are still optimistic that I thought could be a useful frame for us to discuss whether we're getting too high on our own supply of hopium here. The first is the redistricting war, which we've been saying Republicans have basically lost, but maybe not. After the Supreme Court's decision to further gut the Voting Rights Act last week in Calais.

22:41A few southern states are attempting to redraw their maps before the 2026 midterms, even though it may require the legally dubious move of pushing back the dates of their primaries or filing deadlines. Ron DeSantis signed Florida's new proposed map into law on Monday, though that will also face legal challenges. And even though Virginia Democrats won their redistricting referendum at the polls the other week, people are a bit nervous that the Virginia State Supreme Court hasn't yet ruled on whether it's constitutional. Where do you guys think the math stands at this point.

23:12Jon Favreau:So if you look at the Cook political report, they basically have 192 seats that they marked a solid Democrat, 11 seats, likely Democrat, 14 lean Democrats. That's 217 seats that are probably going to go to Democrats and 16 rated toss ups. But 13 of those are held by Republicans and three by Democrats. They're defending a lot more. That is good for us, but it's not great. Like that's not mopping up. That's not an ass kicking. And then to your point, like the redistricting fights complicate things. They'll probably net four seats from Florida. They could states that might move before the midterms include Louisiana, Tennessee, Alabama and South Carolina that would all create more Republican seats.

23:53Jon Favreau:There will be lawsuits that complicate all of this. As you said, Virginia is up in the air. You know, longer term to 28, some blue states could redistrict in ways that benefit us back. But it just it feels closer than it should be with Trump at a 37 percent approval rating to me. If you get the if you give the four seats from Florida, you get four seats potentially from this redistricting and then you lose the four that you were going to gain in Virginia. That's a 12 seat swing that you could potentially see. But nobody really knows. I don't know. I've seen like different people are nervous about the Virginia redistricting just because there's been no ruling yet.

24:27But at the same time, they've ruled against some of the other objections. So I'm not sure if it's just Democrats are nervous or if there's a legitimate chance it gets thrown out. So I'll go through the likelihood of some of the recent developments that we saw. So Louisiana is like the most likely where we're going to where GOP will pick up some seats because the case was about Louisiana, the voting rights case. And so the most likely result there is the Republicans get one to two extra seats in Louisiana. That is there'll be lawsuits there, but that is the most likely since it was directly impacted by the Supreme Court.

24:58Jon Favreau:And the governor literally declared a state of emergency and delayed their primary, which should be happening right now. and they've kind of kicked it to July 15th or until the legislature moves faster. So yes, that process is very much rolling. So yeah, the only thing that can stop that is lawsuits succeeding, but who knows, right? Tennessee wants to get a seat, wants to pick up a seat, the Tennessee Republicans, but they would basically be eliminating all Democratic seats in a black district, majority black district that has existed for decades. And their challenge is they have a timing issue since the candidate filing deadline has already passed and the primary is august 6th and and because they're dismantling the only black district that has existed for decades it it under the the weird ruling in the voting rights act you could still have a section two case there and and at the very least you could have litigation that would take a while to play out so like tennessee's not a sure thing but their special legislative session starts this week it does yeah the day this comes out yeah they will also so they will have to change the primary date they will also have to retro out the reason that it's more of a legal challenge there is they will have to retroactively change the candidate filing deadline that has already passed, which Louisiana doesn't have that problem.

26:09Louisiana is just going to move the whole primary. Louisiana has a problem, which is some people already voted. Right. Well, that is that is. Yeah. So there's that Alabama could get a seat is going to try to go for a seat. They have a bigger problem, which is they need SCOTUS to act on a separate case first and revert to old maps, not draw a new map. So the VRA thing was like, oh, if you're drawing new maps, whatever this, they would have to get then the Supreme Court to act immediately, lift an injunction and go back to a 2023 map that the Supreme Court itself had already ruled was wrong. So they have a bigger hill to climb.

26:42South Carolina, very, very hard. And it doesn't seem like the appetite is there, but they're going to try. But I think the timing issues for South Carolina are even worse. And in Georgia, Kemp has already ruled it out. So Georgia is not going to go. So here's the Virginia problem. The worry there, I was looking into this. So the Virginia State Supreme Court is not like, it's not partisan like other courts where it's not like elected directly. It's a point, the legislature appoints the seats on the court and they're for 12 year terms. So it actually has a slight conservative, small C conservative lean right now, which is why everyone's a little bit nervous about how they're going to rule.

27:19They did allow the referendum to go forward in the first place. Right. But the issues now is people are raising procedural issues in the legislature, not necessarily the referendum itself. It was procedural issues to like there's some people are a little worried now because they're not it's not like a liberal court. if it was and it's not a very conservative court like florida everyone thinks even though this could be a blatant violation of the florida constitution the florida court is right-wing enough that like florida is gonna just say sure and give ron de santis his four seats if it was like new york or california we would probably the referendum would be fine but because of the weird makeup of the virginia court i think that's why people are nervous about it yeah yeah that's what's happening there so all all told like if virginia and florida both survive it's basically we net out at Republicans picking up three seats in the redistricting net.

28:09And if, you know, and then beyond three, you get like maybe five to seven, depending on whether you get Louisiana plus Tennessee plus Alabama. So you're saying, sorry, so it is net three across the entire redistricting fight we've just been fighting over the last year. If Virginia survives and Florida survives. And then there's a potentially plus four to Republicans through this, the post-VRA thing. So basically the floor is much worse for Democrats after this. The ceiling, it all depends on sort of Virginia.

28:39Jon Favreau:And then if you go out to 2028, a bunch of states can move. Oh yeah, then that's a real bad. Illinois could decide to go nuts and be a 17-0 Democrat state. Like California could redistrict again. You could crack a bunch of Democratic districts, spread those voters all across. You could do it in New York, Maryland, New Jersey. New York's planning on it. Washington, Oregon. The problem is if they, Republicans move in 2026, we can't move until 2028. Yeah, I mean, just, I guess what I'm getting The overall estimate for how much the Supreme Court voting rights ruling will impact things, they're all over the place, depending on where you look.

29:11Jon Favreau:Like it's like from a dozen to two dozen seats could be impacted to help Republicans. And then Fair Fight, the Stacey Abrams group, looked at a bunch of districts that Democrats could change to help us. So it's just like it's a mess. It's impossible to know what's happening. None of this is good for democracy. No, I mean, someone just sort of posted this map as like a kind of a joke, I guess, but it's not really, which is you could end up by 2028 or beyond where if it's a red state with a governor and a legislature that is majority Republican, there are no Democratic seats left. And if it's a blue state with a governor, then there's no red seats left.

29:47So that's just talk about polarization. Yeah. On Louisiana, Trump posted on Sunday, quote, we cannot allow there to be an election that is conducted unconstitutionally simply for the convenience of state legislatures. If they have to vote twice, so be it. Any idea what he's actually saying there? I love it. So it's unclear who the they is there. Does he mean the legislators have to vote twice as in approve new maps? Doesn't totally make sense. If this is because Louisiana is already voting and that's why there's some question as to whether the election could proceed, I think that's what it has to mean.

30:17Now, like, who knows what the Supreme Court will do? But the idea that, look, the Supreme Court, this court is a huge fan of unleashing chaos and then being like, we can't believe what's happening. We can't believe what your people are doing with our very obvious and simple ruling. But I do think it's a possibility that the Supreme Court would intervene in some way to say we cannot have a bunch of states throwing out their maps and having people revote and all of this chaos in the run up before an election. It's a tradition of not disturbing election as it's already begun. And I think that's what Trump is worried about.

30:48Yeah. And it does seem like they're even that's why when I was talking about Tennessee, it seems like they would be more likely to do that in Tennessee, even in Louisiana, because the Tennessee thing is really like throwing out the filing deadlines, doing a new primary, eliminating all the districts. It's like a it's a pretty.

31:04Jon Favreau:Yeah, there's supposed to be Supreme Court precedent. It's called the Purcell principle that says you should not be changing elections or the election rules right before an election. Republicans often use that to screw Democrats procedurally. Hopefully it should protect everyone from like really terrible things happening right before an election or people getting disenfranchised. But I don't know. We'll find out, I guess. Yeah. So net net, I would say, I think however this ends up, I still think Democrats are favored to win the House. But this definitely could put a dent in the number of seats that we pick up, even if we do get a majority.

31:42So that's the House. Let's talk Senate. we've been talking about the path to a Democratic majority in the Senate has been getting more realistic by the day, even though it would require defending every Democratic seat and then flipping for Republican seats. But there is another potential wrinkle that JVL at the Bulwark and Jonathan Martin at Politico just wrote about. John Fetterman, specifically the rumors that Republicans are trying to persuade him to switch parties or at the very least become an independent, which would deny Democrats a Senate majority, even if they pick up four seats. J. Mart reported that trump has offered via sean hannity to totally get behind fetterman and raise a lot of money for him if he makes the switch uh fetterman told j mart he's quote staying a democrat and that he'd be a shitty republican um what do you guys think uh specifically is there anything democrats can or should be doing about this possibility just like imagine a democrat in making this offer via rachel

32:37Jon Favreau:tomato. It's so crazy. It's just like the loss is over us at this point. Hannity is so biased. But I mean, this story, look, the details are like Fetterman finds the online left really annoying. He's gotten close to Senator McCormick. Look, we've all been there. Everyone's been there. He's close to his wife, Dita Powell, Goldman Sachs executive turned Meta executive. And then Katie Britt and her husband, as you said, Trump is offering him money and political support. It's not really clear what Fetterman wants politically.

33:07Jon Favreau:It's Fetterman knows this conversation gives him leverage to get something TBD. I don't know the guy. I like find it very weird that his thing is just like being super pro Israel now. And like, that's fine on policy. If you, if you believe in Israel and his right to exist and his right to defend itself, but he seems to take pleasure in trolling people that are worried about civilian casualties or the death toll. Like, obviously this war is not good for anyone, not for Israelis, not for Palestinians. So, but it's more than just Gaza. Like Fetterman also never seemed to criticize Trump, which is an odd political choice when Trump's approval rating is rock bottom.

33:40Jon Favreau:He jumped out after the correspondence dinner to like start defending the ballroom, which again, he's even more unpopular and even more stupid. So I don't know. It's like some of this sounds personal. Like Jonathan reported that Fetterman spends hours hanging out with Republicans in their cloakroom, chatting them up. I get that all personal, all politics is personal. I get that when people annoy you, you can get pushed out of their tribe. Presumably you run for office, because you have beliefs and you want to do things to like turn those beliefs into policy or law. Maybe he does not, but I just, it's terrible.

34:14Jon Favreau:It's a tough situation. I hopefully, I mean, I think we should all just, you know, it does, it does remind you that constantly annoying the shit out of someone is not going to get them to come your way, but it doesn't mean anyone needs to like not say what they believed in. Yeah. There was a post by like the Monroe County Democrats that said he's a traitor to Democrats, that's traitor to Pennsylvanians, traitor to those who work tirelessly to elect him. And that's a defensible statement on some of these issues. But according to Fetterman's, by Fetterman's count, he votes with Democrats 93 % of the time.

34:46He's pro-gay, he's pro-union, et cetera, et cetera. He's taking these heterodox views that I find strange. And he's doing it in a state that is not more red than an Arizona, for example, where you have people that have been much stronger against Trump. Now, the stat that I saw, that I found like I didn't, I first couldn't believe it made sense mathematically. There's a Harry Anton posted this that Fetterman has had a 108 point drop among Democrats. I was like, what do you mean? It means he's gone from plus 68 to minus 40 among Democrats. Now, I don't know if Fetterman's gonna run again in 2028, but it's very clear that he will have a huge problem if there is a primary challenge and there almost certainly would be given how weak he would be in a Democratic primary.

35:30The question is how to keep him on side until then. And I do think that's really, really important. Even Fetterman says in that piece, if Democrats get to 51, who do you think the 51st vote would be? And he's referring to himself. So he's seeing what Power Manchin had, what Kyrsten Sinema had. And he clearly enjoys being at the middle of things in a way that sort of feels vaguely familiar. So I don't think there's anything wrong with being incredibly critical of John Fetterman. But we have this way on our side of deciding that someone isn't on our side and then making it true. And I don't know that it's a balance, right?

36:03Because like, of course he should be criticized and of course he should face pressure to do the right thing when it comes to say like voting for on Trump nominees, for example. But I do think we would rather have Fetterman caucusing with us if he ends up being that 51st vote, then we would rather have J.D. Vance making all the decisions. Yeah, just like we'd, I'm sure we would all rather have Joe Manchin in the Senate right now still. And now he just retired, but like We have Jim Justice, who's voting with the Republicans all the time. Joe Manchin pissed us off endlessly, but still voted with Democrats most of the time.

36:36If Joe Manchin was in the Senate right now, we'd be talking about picking up three seats and not four. We also wouldn't have had any of the investments that Joe Biden made in the Inflation Reduction Act at all because it wouldn't have passed. I do think there's basically two points in the piece that I thought were worth it. One is that 93 % number. And because Fetterman has been going around publicly and privately telling people he votes with the Democrats 93 % of the time, right? So that's on his mind. And then you guys have been, you know, summarizing this, but I loved the way J. Mart wrote it.

37:08He says, he's like, I've seen this a million times. The more one drifts from their political tribe, the more they're scorned and mocked by that tribe, often in personal terms. This only prompts the person drifting away to accelerate their turn and adopt the language customs in some positions of the other tribe with an I'll show them determination. Soon they're identifying somewhat or entirely with the new tribe. The path only goes in one direction. Now, you can say that that is incredibly immature, bad, whatever. Like, fine. It's life. We have this guy until 2028. It's going to be in the Senate until 2028.

37:36That's the deal. And do you want him to stay a Democrat after 2026 or not? Because if he stays a Democrat after 2026, then we have a Democratic majority leader. and that means we're blocking Supreme Court appointments, all this other kind of stuff, or at least we have a chance to do that. If we don't have a Democratic majority, then we have two years of just John Thune as leader, right? And so then it's like, do you, now, does that mean Democrats need to compromise their positions where they disagree? No, of course not. But like, you don't have to be a dick to him, like just for the fun of it and keep pushing him into the other side.

38:07Jon Favreau:Yeah, it's a strange balance. And it's like, it's very clear from the piece and previous reporting on Fetterman that he's way too online and reads all the criticism and like takes it to heart and gets pissy about it. The good news is he says in the piece, he knows that Trump demands 100 % loyalty and he knows what will happen to you if you don't give it to him, like Bill Cassidy or Tom Tillis. But again, the weird thing to me is like, in the olden days, John Fetterman would want a thing, an earmark for a bridge in Philadelphia or Pittsburgh. Like, what do you want, dude? Very unclear. Do you just want to troll people over Gaza?

38:39Jon Favreau:Is that like your animating thing? Like, I understand like sort of taking positions where you punch left and punch right sometimes, and that can be good politics. Doesn't seem like it is currently in Pennsylvania for him. So I'm just sort of, I'm just confused by this. And again, we're not having a conversation right now about the 2028 Democratic primary in Pennsylvania and whether anyone should support John Fetterman. That's not what this is about. This is about from now till 2026, when he will be in office no matter what, do you want to push him into the Republican Party or not? Yeah, that - Or do you want, not to push him in, but do you want to do whatever it takes to stop him from getting into the Republican Party?

39:11Like the fact that that he can see to being a Republican, he's already flirting with it in his mind, even though he's sort of publicly saying that he's not considering at all. But actually, Trump's Republican Party is so unpleasant for anybody who's heterodox to tell us a little bit about how we should be dealing with people like this. You know, stepping back also, like we hear all the time about how we need to be a big coalition and that we don't have people have to have all the same points of views. Like we need to be a party that kind of like embraces all. turns out that was just something we said love it after 2024 when we lost and it doesn't seem like a lot of people mean that and and like and and but it goes both ways by the way it does go both ways but part of it is like okay like he has taken positions that we think are wrong on immigration and ice he's taking positions that a lot of people in democratic party view are wrong on say funding israel's military like argue against those fine but then when people reach a different conclusion and don't vote with you 100 of the time what happens the next day and it can't be that they're all traitors.

40:05It just can't be because - Or that you're a bad person. Or that you're a bad person. Well, I remember, I mean, speaking of broadening the tent, we can bring up Hassan Piker. But I remember like the fight I had with Hassan on the pod, not the last pod, but the one before the bigger fight was when he was like, yeah, you know what Joe Biden should have done to Joe Manchin? He should have like, you know, threatened his daughter within a DOJ investigation. And it's like, whether or not you think, first of all, you can argue whether or not that's a good idea from a legal and constitutional perspective.

40:33But beyond that, like, do you think that would have scared Joe Manchin into voting the right way? Or do you think that would have maybe said to Joe Manchin, like, fuck you people, I'm leaving and I'm going to the Republican Party because it's human nature to be like, oh, you're going to yell at me more and threaten me like, fuck you. I'm going to go take my toys and go to the other party.

40:51Jon Favreau:Yeah. Also, we do know that the Republican Party, if you don't do everything Trump says, it ends with him telling a mob to hang you with the capital so the downside risk is a little greater on their side need a bigger rope for fetterman than for fucking pence but you can see from you can see a big dude compared to pence it's a really good point we're gonna buttress that buttress that fucking uh what do you call it what's the thing you hang people from uh gallows gallows you can see from the piece too like katie brit and uh and what's his name uh david mccormick they're like working overtime to be nice to fetterman because they think to themselves oh if we're nice to him then maybe he'll do this.

41:25It must be so obvious. Yeah. Oh, you have one with me again. One would hope.

41:29Jon Favreau:It's like a Katie. No, no. Katie Britt loves me, loves hanging with me. Great. I'm John Fetterman.

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42:36That's ZipRecruiter.com slash crooked. Meet your match on ZipRecruiter. Pod Save America is brought to you by Americans United for Separation of Church and State. This hasn't gotten a lot of airtime, but President Trump's Religious Liberty Commission is reportedly meeting with a specific focus, advancing a Christian nationalist agenda rather than protecting universal religious freedoms. Religious freedom should be a shield for personal belief, not a sword used to harm others. Currently, we're seeing this right being distorted by taxpayer-funded agencies that discriminate against prospective foster parents.

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43:37Visit au.org slash crooked to learn more and become a member today. This fight is far from over, and every one of us has a part to play. so uh in the category of democrats being democrats there's also some new concerns swirling about the dnc after ken martin's stellar performance on this very show last week um where you threw him off that ship in the harbor like assam bin laden's corpse is that okay to say look he was a he was a bit testy i think about his decision to uh not release the 2024 autopsy despite promising to do so um as well as the state of the dnc's finances which are not great. Over the weekend, Lauren Egan at the Bulwark reported that some DNC members have recently considered trying to force Martin out, but that effort was, quote, put on hold after members failed to identify an alternative candidate willing to step into the role.

44:24Sort of like trying to be the new Ayatollah, I guess. Party members are also trying to force a resolution that would put constraints on Martin's spending and how he handles the budget. I can confirm the Bulwark reporting. I've also talked to DNC members and others around the the DNC who have talked said that there's real conversations there's been real conversations about trying to potentially oust martin what do you guys make of how big of a problem this is what is the well here's what you don't understand what do we want the DNC to do between now and november right and seems to me like at this point this november this november we want to raise a ton of money right but very but but even then the DNC has very little to do with the midterms so So if we succeed in the midterms, Ken Martin's going to say, see, you're all a bunch of bedwetters and I'm amazing.

45:13And look what the DNC did. That's going to be wrong because the DNC doesn't really have a lot to do with the midterms. If we fail at the midterms and people say, oh, this is why Ken Martin's off. That's also not doesn't really hold water because it's just the DNC plays the biggest role in presidential elections. So this is a this is a 2028 issue, not a 2026 issue.

45:32Jon Favreau:Look, his performance in that interview was shockingly bad. And like, obviously, I'm biased here. I'm like, I'm a host of the show. I'm your friend. I'm friends with Ben Wickler. But like, I didn't go into the interview feeling like, oh, I have beef with Ken Martin. I was just kind of like, what does this guy have to say? And, and I came away feeling like he was insulting my intelligence because like on the autopsy debate, specifically the 2024 DNC autopsy and why they haven't released it. Nothing in that report could be as bad as the series of news cycles about spiking the report or going back on your promise to release it.

46:01Jon Favreau:Nothing, nothing. And despite what he said, Like no one expected there to be a silver bullet in there. I did hope there would be a granular look at the efficacy of like voter contact or knocking phone calls, ad spending, like issues that in hindsight move voters. If vendors or like, you know, various individuals spent money poorly, we should name and shame them. But now we don't have any of that. And everyone is filling the void left by the lack of information with their priors. Right. So the DNC defenders say, I was all just inflation or Biden was too old. And the left says it was all Gaza. And we just argue in circles ad infinitum.

46:39Jon Favreau:And it just it sucks. It's a terrible setup. And there was a DNC member saying on Twitter that the truth is the autopsy report just never really got done or never got completed and never will be. And that's why it wasn't released. And if that's true, that shows a lack of candor in previous statements and the interview with you that is really bad and a problem. And so then the fundraising, like the fundraising is not good. There's a bunch of big donors on the sideline who will not give to the DNC. I know that from personal conversations with them and we can't pretend otherwise. So like this process about pushing them out or selecting someone new, like, I don't know how that would work.

47:16Jon Favreau:I also, I don't think you can constrain, like you pick someone to lead the DNC, you pick them to lead the DNC. You can't constrain how they spend money. If you're at that point, you should get a new person in there. This person needs to be able to spend money. So I just, I came away shocked that like a political professional struggled that badly in just answering questions that I feel like were asked in good faith and could have been answered better, but just, it was a mess. It is now accepted as a fact that the DNC covered up the autopsy because it showed that Kamala Harris lost because of Gaza.

47:48That is like on the whole parts of the Internet. That is just a known thing that we all know about the fact of this report. Now, there has been reporting that that played a role. And I would like to know what that information is. But it just speaks to the damage done by either not finishing the report or not. And like the way in which saying you're not going to release the port and not finish the port go hand in hand is this thing kind of just sort of slowly like kind of ends with a whimper. We're probably not going to put it out. Like the work, you know, everyone kind of slows down. The meetings get canceled and all of a sudden there's no report and nothing to release.

48:19And so like part of the problem is there's no way to answer for that in an interview now because what should happen is go back in time, aggressively finish the thing and get it out the door. Yeah, what I have heard, and like Tommy said, there was a DNC member on Twitter who said some of this, but then I've heard it from other people. Yeah, I've heard it from others too. Lots of other people. Citing just the tweet. Ken Martin had his friend Paul Rivera, who was unpaid, which is why Ken was telling me that he was like, oh, we didn't spend hundreds of thousands of dollars on it. And I was like, oh, it's a free report.

48:51And he was like, well, so he got this guy to do it. The guy went around and talked to people, didn't even talk to all the right people. A lot of people weren't interviewed at all, did a shitty job. And Ken the whole time was like just letting him do his thing. and then when he came back and didn't have any of the good information then they just wrote up the report what they had it was a garbage report and they realize and then ken realized they couldn't release it and so instead of either saying like this was a bad thing i'm going to try another you're going to try another archetype so we're going to hire someone else we're going to do it right has apparently just decided to not be honest about it yeah i've heard that from a bunch of

49:28Jon Favreau:people too i can't confirm that it's true or not it would certainly i've heard we've heard from a lot of people who are like in the know yes but it certainly does a better job explaining why you would endure this torturous series of news cycles about a thing rather than just dump it out over christmas or something and just like move on i've also talked to um people who have raised money at the highest levels for democrats for a very long time and they said that the finance situation is a disaster and they're like he can talk about state investments and this and that the problem is he is spending more money than he is raising.

50:03That is very simple. And it is a mismanagement of funds. And so even if he was raising a lot more money and had more success there, if you're spending more than you're raising, it's still a problem. And to all of his talking points about investing in state parties, the portion that they're investing in state parties still, even if you take all that money, that nowhere near makes up the large gap between the fundraising in the spending that's going on at the DNC right now. So there is a mismanagement. Since that interview, I've heard from DNC members, from people inside the DNC, current and former officials, and heard from donors.

50:40And then those people have told me they've heard concern from party leaders, former DNC chairs, who were very upset about this. And no one knows what to do because I guess, Tommy, to your point, like the bylaws make it very difficult to actually oust Martin. And so people are sort of wondering what to do now. And look, I think Amanda Lippman, our friend who runs Run for Something, you know, she made a good point about this. She put a video about this on her Instagram. But the real challenge here is building trust in the Democratic National Committee ahead of 2028. Because what the DNC does ahead of 2028 is they are going to set the primary calendar, which is obviously going to be very contentious because depending on which states go first, that's going to help different candidates.

51:22They are going to set the debate qualifications and who qualifies for debates. And so we are going to have a raucous primary in 2028. And the, you know, the supposed to be the referee of that primary is supposed to be the DNC. And I do think that, like, it's incumbent on all the candidates who are going to run in 2028 in their campaigns to, like, speak out publicly and get some transparency, more transparency than we've gotten from Ken Martin on what the rules are going to be, how the process is going to go, make it transparent, whatever happened to the fucking autopsy. and like what's your plan to be financially viable in 2028 because it is important for the dnc to have money ahead of the presidential election in 2028 yeah i guess the thing is i agree with all that it's like right now the most important thing is that like every conversation we're having about the democratic national committee like it is important going forward but for right now it is like about democratic party problems that ultimately will have no impact what happens in 2026.

52:22And that doesn't mean we don't have to have this fight in this conversation right now. The thing I think. Well, yeah, no, because to that point, love it. Like the folks I was talking to said, like, their biggest worry is 2026 happens. We do well. And then Ken Martin's like, see, you are all wrong. Bunch of bedwetters and blah, blah, blah. And we're moving on. And then suddenly you're in the primary in the 2028 primary, which happens like right after the midterm elections. And by then it's too late to solve the problem. Right. The question, right, is the fight over who would be DNC chair plus the sending money all over the world, combined with either the inability or refusal to release the autopsy, have together created this storm.

52:58And the question is, those are due very specific problems, right? That like, they may carry knock-on effects into the next year, but they don't actually speak to whether or not he would be able to do those jobs, right? Like what he would do to run the party in the next year. But like what I took away from this is like, when we saw him at that party, I had always seen Ken Martin in these kind of like talking point mode interviews, which I found generally frustrating, but not more or less than any traditional politician. But at that at that meeting, he was so intense and direct, like in a way that I'd never seen in a kind of public facing way.

53:33It was like, oh, like there's the real guy. He's like an operator, like an actual kind of like hard nosed guy who's like pretty upset about bad coverage, pissed about it, thinks it's unfair, wants to argue about it, wants to make his case. I thought like, oh, that's like an interesting kind of version of this person that I hadn't seen because publicly he does a kind of more traditional Democratic politician thing. And I think what I took away from the interview overall is like the era of that kind of talking point is over. Like, don't talk down to people like this. It doesn't fucking work. Certainly not solving your problem.

53:59It was direct, but he's also very, it's very defensive. And what you've heard from DNC people and people in the Democratic Party is that the relationship building element of the job, which is also important for the Democratic National Committee chair, is lacking in a bit. And so it's very insular and he has not reached out to people, especially people who like supported any of his opponents in that race, you know, which is tough.

54:23Jon Favreau:But also, like, his whole point was like, we're looking forward, not backwards. And it's like, well, none of us want to wallow in the past, but it's about learning from and correcting mistakes. And like, look at the Democratic Party right now. We have not learned from and corrected a lot of mistakes. Like, remember when voters were like, hey, you have a gerontocracy problem? Have we solved that beyond removing Joe Biden from the ticket? Absolutely not. whenever he's whenever sorry but he's doing this like Bill Belichick we're on the Seattle we're on the Seattle thing and it's like we want to figure out what we screwed up last time and fix it and like it just it was very it was very frustrating and his repeated point about lessons we're releasing the lessons the lessons I encourage everyone to go onto the DNC website and sign up for the 200 page lessons report and see what it is because it's not really a lot of lessons it's uh there's some a lot of it is lessons from success in 2025 and then like various case studies from different groups that are just sort of pasted into the document, like our friends at Swing Left, who did a lot of that research door to door when they were, which is great.

55:22We love it. But like, that's not an autopsy of 2024. No, it's not. Whenever someone says, like, we got to look forward, we can't look towards the past. And it's like, okay, where do you learn from? Because I only, I face the past. The future is, but actually, in a lot of ways, behind me, I only find out what's going to happen there when it becomes the past. The present is infinitely small. So I tend to live in this present that I can't really quantify. And everything I know, 100 % of it actually comes from the past, which is interesting. So I don't know how you're supposed to learn from the future as before you've gotten there.

55:56So I think the past is a good place to look to find answers, I find, I find. Anyway, it's an issue. It's an issue. Looming over all these issues though, is the fact that even though Trump and the Republicans are polling horribly, the Democratic Party isn't popular with voters either. Lakshad Jain at the argument had a piece last week pointing out that the collapse in Trump's approval ratings has not yet resulted in Democrats gaining by a corresponding amount on the generic ballot. So basically, in their analysis of polling, Trump has gone from negative 16 to negative 22 between July and April.

56:29But the Democratic generic ballot advantage has gone from plus six to plus six. And yet some Democratic candidates are still polling quite well against their Republican opponents. So that's good. Even in purple states, maybe the most prominent example here is John Ossoff in Georgia, who has also gone all in on a corruption message. Here's his latest, very good, very viral video. We're told a story. Work hard, play by the rules, and you'll thrive. No matter who you are or where you start, the grind will pay off. But for too many, this story just isn't true. The problem is a corrupt and failing political system.

57:08The problem is that the people's elected representatives don't represent the people. They represent the donors and special interests. Corruption is why things don't work for ordinary people. To fix it, we have to understand it. Corruption's impact isn't abstract. It shows up in our daily lives. Take prescription drugs. So he goes on there to talk about how, you know, when Bush passed Medicare Part D prescription drug program in 2003, that's what stopped drug company or stopped the United States government from being able to negotiate for lower prices with the drug companies, just like other countries do.

57:51And that like, I remember talking about this when we were like back in the Senate, Billy Towson, who was the head of the House committee there, then left Congress to go be the lobbyist, the pharmaceutical company. And then, you know, he helped lead the fight in the Senate to actually let, you know, lower prescription drug prices for a lot of these for a lot of these prescriptions, which I thought was the way he told it was a more effective and better story than he ever heard from the actual Biden administration itself, even though they were very responsible for the win. But what did you guys think of that video?

58:23And also just whether Ossoff's message is should be a model for other Democratic candidates?

58:29Jon Favreau:I mean, I think the corruption message is really powerful because it's true. And it also gives you a why to explain why things are so broken. You're not just blaming the other side, you're blaming something more tangible. And I think it also speaks to the moment, which is the voters are furious. They want to burn down the system. That was true in 2016. Trump effectively channeled that fury. I think he's lost those voters now, but those voters are probably even more angry, right? Because they're pissed off about prices and inflation. And so Obama ran against Washington, Bill Clinton ran against Washington.

59:00Jon Favreau:And also I think when you run - too. Trump did too. And when you run on that kind of message, hopefully it creates a mandate to actually change some of the things that we're talking about in there. But it also, it does let us tell a story about Trump that it isn't just like he's bad because I think what Trump has done to like personally charge the corruption in government is so far beyond Billy Towson becoming a pharma lobbyist. It's like his kids follow him around on foreign trips and they make real estate deals in foreign countries afterwards. Like we all watched, remember the board of peace event yeah it was something like uh egypt when the president of indonesia was like hey donald should i call don jr or eric to cut a deal right remember this um they're making billions off their crypto interests they even sold half of it to this emirati back company eric trump is uh advisor to a robotics company because he's a big robotics drone genius apparently he got a 24 million pentagon loan and maria bartiromo was like hey congrats eric well well done on that uh don jr advises Cal sheet and poly market, which these Trump officials are using to bet on shit they are doing with insider information.

1:00:04Jon Favreau:Jared Kushner is negotiating with Russia, Ukraine, Israel, Iran, all these Gulf countries, 99 % of the money he's raised in his investment fund is foreign. He's trying to raise 5 billion more from mostly foreign interests. He was doing so at the sideline of an event at Davos. He has not filed a personal financial disclosure form. So like this story, it's very real it it tells itself if you have some time and you have the ear of the person and i think ossoff has done a better job prosecuting that case than most because he's consistent and one thing he says in that video that we didn't play and i hear him say in the stump too is and look both sides do it both sides do it which is the scale of it on the right and especially with trump is just exponentially greater but like it is important to voters to acknowledge that like yeah Democrats aren't fucking perfect on this either yeah I think there's two questions it's like what is the source of America's ills and then what is the best message going into the midterms I like the corruption message is great I think this video is great uh And electing Democrats, like Democrats are corrupted by the money in politics because we're all people and money corrupts.

1:01:12And it has made it so that Democrats, when in power, do less, make less change, make more compromise. It takes more to get certain votes because those people are either they're explicitly in their own minds trying to protect their donors or they've kind of convinced themselves they believe what it's financially best for them to believe. This happened when we were passing Obamacare. Everybody blames Joe Lieberman for killing the public option, but actually it was a bunch of Democrats in the Senate when we had 60 votes that stood in the way of having an option for people to get public health care like Medicare because of lobbying, because of fear of negative ads, because Joe Lieberman had a bunch of insurance companies in his state.

1:01:54But even more after that, Joe Lieberman personally stopped a Medicare buy-in for 55 plus that would have made a huge difference for everybody. And he did that because he had donors in his state. And even though he was retiring, he did it at their behest. So these things do make a difference, and it is both sides. But we're in this mess. Why is this corruption tolerable? It's because Republicans are excusing it. Barack Obama wins in 2008. He is punished in part because he is paying for the consequences and economic fallout of the previous Republican administration. Joe Biden and Democrats are punished because of this mismanagement of the pandemic and the economic fallout that came after that pandemic.

1:02:30But when you elect Democrats, they tend to do things that are more popular and more economically progressive. And when you elect Republicans, you end up with tax cuts for the rich and deregulation. It happens every time. Most of what our politics is is about obfuscating that for people. I think in a world in which people don't generally believe that instinctively and they come to doubt and mistrust Democrats for reasons having to do with economic mismanagement, but also because of a whole ecosystem that exists to make Democrats look extreme and silly. And because some Democrats have taken stupid and embarrassing and unpopular positions, I think it is smart to have Democrats making an argument like this.

1:03:03But to me, the goal is for each Democrat to make the best argument they can, tell the best story, because nobody votes for a generic Democrat. They vote for the Democrat on their ballot. And then how we address our broader problem with the electorate, where people mistrust us, don't believe us on the economy. But they don't believe that we'll do what we say on the economy, and they still believe we'll do what we said in 2020 and everything else. That, to me, is a fight. We're going to have to fight in the primaries in 2028. Yeah. I mean, to the broader question that Blackshear raises in that argument piece about why Democrats aren't gaining on the generic ballot by as much as Trump's approval is falling.

1:03:39I do think there's probably a number of reasons. Oh, definitely. But I do think that there is just a severe lack of trust in the Democratic Party and the Democratic brand that comes from decades. But it also comes specifically from everything that happened at the end of the Biden administration. Joe Biden running as part of it. But, you know, Laksha points out the Democratic position on crime is a big part of it, or at least what the perception of the Democratic position on crime is, which was unfortunately hurt by the defund the police discussion, which, of course, you know, you didn't have Democratic candidates saying defund the police.

1:04:19But enough activists were that the perception became that Democrats want to defund the police. Most Democrats didn't, but a few did. A few did. A few did. And those were the voices that were elevated by some often by the other side. Yes. I think some of the positions on border security and immigration contributed as well. There's some cultural issues as well. So there's a lot going on. But I think even beyond all those individual issues, because I do think if you take an unpopular position on an issue because you really believe in that position and you sell it and you say, I'm sorry that I'm not on your side on this, but this is just what I believe, that is one thing.

1:04:52There's a perception that Democrats are just like, maybe I'll be on this side of this issue, but then maybe I'll change if somebody's unpopular. and the wishy-washiness, which is another version of corruption. That's not just money. It's power and fame corrupting as well, right? Like I like my position of power and I don't want to lose it. And so I'm going to say whatever I think is popular.

1:05:10Jon Favreau:There's lack of faith in the political system generally, which I think spreads to everyone. And I think on the Democrats to look inward, I think that, you know, voters had high hopes for Obama that they didn't feel we're met, right? That's an area where we all look inward. On the Biden administration, like this is why it's so annoying to see Hunter Biden running around and blaming everyone but himself for his father's political standing because he did more to nullify the Democratic Party's position on waging this corruption message against Trump than literally anybody else because of his scummy business dealings.

1:05:39Jon Favreau:And yes, they're nothing compared to what Don Jr. and Eric Trump do on a given Tuesday, but still he was a huge problem. And that's why it's so like galling to hear him out there. But yeah, I mean, I think there was a broader trust thing with Joe Biden where we as a party were like, no, no, no, he's not too old. He's totally fine. And then he ran again and voters firmly rejected it. Then there were the pardon issues you were talking about. That said, I do think like, like I'm worried about us not doing better in the generic ballot rating, but we have no leader. We have no standard bearer. That's a huge part.

1:06:09Jon Favreau:Like we are, yes, we are off sides where the electorate is on some issues. Like the Washington post just had a poll out this weekend. It found 53 % of voters think Democrats are too liberal, but a similar number of thoughts. the Republicans were too conservative, right? So like people just maybe don't like the other side. What gives me some hope for the midterms? I think they're going to be a referendum on Trump and the party in charge. I also think it's a turnout election. And if we can turn out our far more motivated base, then we will win. And then that same post poll, 73 % of Democrats say voting this fall is more important than previous midterms versus 52 % of Republicans.

1:06:41Jon Favreau:So our side is considerably more motivated to go out right now. I have now heard from a few people who've just like asked me advice on like who to support what democrats to support where to put their money their time and and a thing that i keep hearing is um you know who i want to support this time around because of the state of the politics of the party first time candidates new candidates and there is something and like the this is where like the the joe biden issue and the ken martin issue are somewhat connected because there is a like don't piss on our leg and tell us it's raining kind of thing where you look at Democrats and it was very obvious that Joe Biden was too old.

1:07:19And then a bunch of people in the party were like, no, no, he's fine. Everything's great. The debate performance was fine. No big deal. And then Ken Martin's like, well, you, we told us you would release the autopsy and you're not releasing the autopsy. And he's like, we are releasing it. We have been releasing it. You know, just like, it's like when you're, when you, when someone tells you something that is obviously seems dishonest because we all have eyes and ears, like you lose a level of trust in that person in that institution, that it's hard to get back, you know? And I think that's part of the issue as well.

1:07:45Yeah, I think that's right. The age thing is a stand-in though for, because like if you look at who were the people that were the most behind Joe Biden, even towards the end, it was actually, it wasn't ideological. Even like Bernie and AOC were the ones that like were behind them. A lot of progressives, actually. But people really know what Bernie stands for. They really know what AOC stands for. And I don't think AOC or Bernie particularly pay a political price for that position in part because their deeper kind of values are so clear. What Asif to me is doing with these kinds of anti-corruption message, with the story he's telling, is he's trying to have a kind of an ideologically kind of broad story that kind of can represent a vision for what Democrats stand for, what they care about.

1:08:22And to me, what I worry about, what does it mean to care about corruption? Because if we can win and then all of a sudden we're talking about whether or not to do hearings, right, there's going to be a ton of pressure from polling. because when you ask people, you know what the polling is going to say? Do you want people to look backwards? Do you want them to look forward? Oh, I want people to go forward. Do you want people to investigate Trump or do you want them to focus on issues that are affecting your family? I want them to focus on issues affecting my family. And I worry that that kind of like simple reading of what the polls will certainly say will lead people to think, oh, we shouldn't, we got to just focus.

1:08:52I'm not focused on what Trump did. And we got to, that was bad and I hate it. You know, I've always been against it, but we got to focus on my plan. And I get that. But one way you prove to people that you really care about something, that you really stand for something is you say, look, we got to get to the bottom of this for the future. We got to do this even if the polls say it's bad. We got to make sure we root out this corruption to protect our country from a future Trump, whatever it sounds like. But we have to be willing to actually kind of put real kind of put our shoulders behind an actual anti-corruption agenda when we're in power.

1:09:19Yeah, I agree. All right. When we come back, I'll talk to Strict Scrutinies' Melissa Murray about the latest rulings on abortion medication, the Voting Rights Act, and her new book. That's right when we come back.

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1:11:58Taco President, Cinco de Mayo. This is perfect. The book is The U.S. Constitution, a comprehensive and annotated guide for the modern reader. I want to ask you a few questions about that. But first, I just want to start with a little legal news, specifically the latest legal news on Mifepristone, the abortion medication responsible for about 65 % of abortions in the U.S. Can you walk us through both what the Fifth Circuit ruled on Friday in the Louisiana versus FDA case and what the Supreme Court did on Monday? Sure. So let me roll back a little bit. Some of your listeners will remember, and if they're strict scrutiny listeners, they'll definitely remember that there was a case a few terms ago in the court called FDA versus the Alliance for Hippocratic Medicine.

1:12:46And I had such a hard time with the name of this case because I kept saying hypocritical medicine. It's something of a Freudian slip for me. I was going to say, yeah. Right. So these are a group of pro-life doctors that were challenging the FDA's approval of mifepristone. And that case was argued before the Supreme Court. The court, in an unexpected decision in advance of the 2024 election, said that there was no jurisdiction to hear the case because the doctors who were part of the Alliance for Hippocratic Medicine lacked standing, which is to say that there are professed injuries because of the FDA's approval of mifepristone were too attenuated to actually sustain federal court jurisdiction.

1:13:26So the case was thrown out, although the court obviously didn't answer important questions regarding the FDA's approval of mifepristone, its authority to approve mifepristone, nor did it weigh in on the absolute ridiculousness of some of the claims that the Alliance for Hippocratic Medicine were making. In any event, a new group filed a lawsuit, this time in Louisiana. That was honestly the biggest surprise that they didn't go back to Amarillo and Judge Matthew Kaczmarek to file this case. They instead filed it in Louisiana. And last Friday, the Fifth Circuit issued a decision on the case where they effectively issued a nationwide ban on mifepristone, basically saying that the FDA had not done what it needed to do in approving it and that there were questions regarding the FDA's approval of mifepristone that required staying the distribution of the telehealth aspects of the protocols for distributing mifepristone.

1:14:31So I just want to emphasize, like the Fifth Circuit it did this, but they got a real assist from the Trump administration. So the Trump administration has been at great pains to stay out of abortion, likely because they recognize it's a really bad issue for them. The whole idea of women dying in parking lots doesn't sell well, even in the red states. So the administration has been pretty hands off on abortion and reproductive rights. But the FDA, under Secretary Bearjuice, a.k.a. RFK Jr., has been making some statements about mifepristone. For example, they've challenged or questioned whether the FDA's approval of mifepristone was appropriate.

1:15:13They've challenged or said that some of the requirements for distributing mifepristone via telehealth or through the mails should be questioned or reexamined. So in making those kinds of statements and concessions about the efficacy and safety, of Mifepristone, the administration basically laid the groundwork for the Fifth Circuit. And indeed, the Fifth Circuit cited many of these statements from administration officials at the FDA in making its decision. So they relied on those statements. So this wasn't issued by the Trump administration. They didn't put a ban on Mifepristone, but they certainly gave the Fifth Circuit a glide path for doing so.

1:15:51So the Fifth Circuit basically had this nationwide ban. that went into effect on Friday. They issued it at around 4 o 'clock Central Time, 5 o 'clock in the East, and it is a nationwide ban. And on Monday, the Supreme Court, through the circuit justice, who is assigned to the Fifth Circuit, this is Justice Alito, so interesting, he stayed the ruling. This is obviously important because a stay means that Mifepristone is now available again on a nationwide basis. But one of the things that our friend of the pod, Steve Vladek, noted in his substack and on Blue Sky is that Justice Alito will issue stays in cases that come to him on an emergency basis.

1:16:38But in cases where he's more sympathetic to the causes, the stays are usually indefinite. For cases where he's not particularly sympathetic to the causes or the issues underlying the case, he makes the stay time limited. And in this case, it was a time limited stay. So this sets up a schedule for briefing and whatnot. And, you know, this will be back before the court, but the stay will not be finite. There's going to be a timeline on this. So in this new case, I noticed the manufacturers of Mifepristone filed a brief that basically says Louisiana's standing theory is an even more attenuated version of exactly what the court already rejected.

1:17:19Do you buy that argument? And more to the point, do you think the court will? Well, I do buy the argument. Again, the arguments that were made and rejected by the court in FDA versus the Alliance for Hippocratic Medicine talked about, you know, like you have to like when people are using the fapristone, the doctors are denied the aesthetic privilege of watching babies born. And it was just like, oh, okay. So it was like really fanciful stuff. And I don't know that it's that much better here. I mean, they're basically arguing in very fetal person forward terms that the state of Louisiana is prevented from protecting unborn life because mifepristone is available nationwide and can be distributed via telehealth and through the mail.

1:18:07Hard to make that as a specific injury to Louisiana specifically. You know, there's also a discussion of the whole question of the safety of mifepristone. And they note that there are two people in Louisiana who suffered ill effects from the use of mifepristone. But they also say that, you know, over thousands of women have been using mifepristone since Roe versus Wade fell in Dobbs. So, I mean, make that make sense. You know, thousands of women are using it. Two women experience ill effects. Therefore, it's a safety concern. And that's one of the predicates under which they're bringing this lawsuit.

1:18:45So I don't buy their claims of injury. I don't know that the court will be as skeptical this time of those claims as they were when this case first came or a case like this came before the court. Again, when FDA versus the Alliance for Hippocratic Medicine was before the court, it was right before a really consequential election. It was just after the Supreme Court overruled Roe versus Wade and Dobbs. I think the court knew that the galvanization of abortion fervor was not great for the court, also not great for the Republican Party. I don't know if they're thinking that the same kinds of popular conditions exist right now.

1:19:29The abortion question for a lot of people may have fallen to the wayside right now, just because the administration hasn't done anything explicit or obvious as an overture toward abortion rights. People are worried about other things, the economy, the war in Iran, on and on and on. This might actually be a moment where the court is like, you know, nothing to see here. No one's paying attention in the way that they were between 2022 and 24. And this could be the moment. I mean, even if the court buys the standing argument this time around, wasn't a big line of legal reasoning in Dobbs that the states must decide this, this cannot be a federal issue?

1:20:12And if they rule against Mifepristone here, doesn't that make, isn't that just a national, effectively a national ban on all abortion medication? Look at you making constitutional claims, Jon Favreau. It's almost like you read Brett Kavanaugh's concurrence. Let the states decide what they want. Federalism for everybody. Yeah, I guess it's true that this question certainly could be decided on federalism grounds. like Louisiana has made a choice for itself. And certainly they could address the question of the importation of Mifepristone into its borders for use by Louisianans. But the broader question of a nationwide ban, like that seems to be a question that's asked and answered by the whole concept of federalism, whether this court will do that.

1:21:06I mean, it's basically the bottom line is, will this court be principled about its prior stances on questions like federalism, the sovereignty of individual states, including blue states that may want to allow for access to abortion, or whether they'll just do what they want to do because they can and they have a supermajority of six. And when you have six, they let you do what you want. Let's take the optimistic view and say that SCOTUS does the right thing here. the Trump FDA. Are you Kate Shaw? Well, what's going on here? Don't worry. I'm going to bring us back to Earth soon. This is more of just an exercise.

1:21:48The Trump FDA, as you pointed out, is still doing its own review of Mifepristone, prompted by a debunked Project 2025 report. So is there a case to be made that the legal fight Is it maybe beside the point at this stage? Like, could we just see the FDA itself, you know, cause us to lose telehealth and mail order mifeprestone either way? So any agency action, I'm sure, would be challenged by reproductive rights groups, reproductive justice groups. So certainly the FDA could move ahead of this case and go forward. And again, the whole question, the timeline of this case may be upended, like whether this is an emergency appeal that was made to Justice Alito in his capacity as circuit justice.

1:22:34So that sort of while the litigation is pending. But the next step for this litigation anyway would have been the Supreme Court. So this is an initial stay. There's going to be a question about whether the court takes this up. Something could obviously happen at the FDA that possibly could moot this case. But I think anything the FDA does would likely to be challenged. But it does seem like this is a tricky one in which if the court rules for Louisiana, what does that mean for someone in California or New York or Massachusetts trying to get a Mifepristone prescription? I think it depends on how this decision writes.

1:23:10If this is a decision that takes seriously the question of federalism, as you alluded to earlier, then there is probably an opening for someone in California. It just may limit the importation of Meprofisto in two states that have very robust restrictions on abortion. It wouldn't necessarily, depending on how it's written, it wouldn't necessarily prevent people from Louisiana from leaving the state unless Louisiana wrote a law that made it impossible for people to leave the state. Although I think that could be challenged on constitutional grounds regarding the right to travel. Brett Kavanaugh mentioned that and his concurrence in Dobbs as well.

1:23:51So there are a lot of open avenues. I think one thing that is really interesting and deeply implicated by this case and the questions it raises is what happens to physicians in blue states who prescribe mifepristone, and then the prescriptions are going to people in other places, whether it's Louisiana or whatnot. And And those are big questions and likely to implicate the spate of shield laws that have been enacted in the wake of Dobbs that haven't really been tested at the Supreme Court yet. Let's move to another cheery topic. The other big court ruling from the other week is Calais, which was about the Voting Rights Act.

1:24:33It was a 6-3 decision, again, with our friend Alito writing for the majority. um what did the court do there and what is the actual practical consequence going to be uh do you think over the next two four six years well what did the court do there so what does the court tell us it's doing and what does the court actually do may be two very different things and maybe we should parse that for a little bit um the court in that case said that it was doing no more than realigning the terms of Section 2 of the Voting Rights Act of 1965 with the jurisprudence that it has issued. Anytime the court says it's realigning something, it's pretty much either eviscerating it or overruling it.

1:25:18So they are presenting this as a kind of modest change or update. But as Justice Kagan said in her dissent, it is effectively the evisceration of Section 2 of the Voting Rights Act. And to understand what she means by that, I think you have to understand the procedural posture of this case and what the case was actually about. One thing to note here was that back in 2023, the court took up a very similar case called Allen v. Milligan. It was about Alabama's congressional map that was drawn in the wake of the 2020 census. Alabama essentially packed its Black citizens into one district. That map was challenged as an impermissible racial gerrymander under Section 2.

1:26:01A lower court agreed it was an impermissible racial gerrymander, and it ordered Alabama to draw a new map with more representation for African Americans. And so Alabama drew a map with two voter opportunity districts where minority voters would have the opportunity to elect the candidates of their choice. Fast forward to October term 2022, but June 2023, when the court issued its decision in Allen versus Milligan, the map that had been drawn, the second map with the two voter opportunity districts had been challenged as itself an impermissible racial gerrymander because they were thinking about race when they were trying to remedy the racial discrimination of the initial map, which seems right.

1:26:42You have to think about race if you're trying to vindicate the interests of minority voters after the state has screwed over the minority voters with the first map. And the court in that case said, this map is fine by six to three votes. So they upheld the new map with the two minority opportunity districts. Subsequently, the same thing happened in Louisiana. So it's a virtually identical case. Louisiana draws its maps after the census. It makes one opportunity district for black voters, even though black voters comprise about a third of the Louisiana electorate. A court says it's an impermissible racial gerrymander, orders the state to draw two new districts.

1:27:22The state does that. A group of non-African American voters challenge the new map with the two opportunity districts as an impermissible racial gerrymander on the view that in trying to remedy the discrimination done by the first racial gerrymander, the state has now engaged in more racial discrimination. And the second round of racial discrimination is racial discrimination against white voters. And in the decision that was issued last week, Justice Alito said, yeah, that sounds right. Even thinking about race in the context of trying to remedy past racial discrimination is itself a racial violation.

1:28:00So this is basically applying to the context of voting rights, the same logic that this court has used in the context of affirmative action. The Constitution does not see race at all. If you're even thinking about race, even if it's for remedial purposes, that is suspect and should be invalidated. And if you are going to use race as a remedy, the only context where it will be applicable and permissible is in circumstances where you can prove intentional discrimination, which is really, really hard to do, especially in the context of voting where, and especially in the South, often race and political affiliation run together.

1:28:40So most black voters in the South are going to be Democrats. So if black voters say, hey, listen, you just totally diluted our voting power. This is a racial discrimination issue. It's a racial gerrymander. The state just has to say, no, we were doing this because we were trying to consolidate partisan advantage. And that's probably true, but it doesn't mean it's also not racial discrimination. The court says, Full stop, you've got to have absolute proof that this was intentional racial discrimination. Most states are not dumb. Most state officials aren't dumb. They're going to figure out how to do this without making it look intentional, and they're going to keep doing it.

1:29:17And that's really the danger of this case. We're going to see more and more districts being drawn in ways that disadvantage minority voters and voters of color. We are going to see more and more states try to consolidate partisan advantage. Marsha Blackburn of Tennessee reportedly said that this decision leaves the state legislature of Tennessee free to make Tennessee a red state in perpetuity. All of this is unbelievably anti-democratic, but it's also deeply, deeply anti-multiracial democratic. This is how you kill a multiracial democracy. So how did the court differentiate its ruling in the Louisiana case from its ruling in the Alabama case, where I believe Roberts and Kavanaugh voted with the liberals in that case?

1:30:05Well, I think part of how they did this was that they created a new question to be asked. So the case, Louisiana v. Calais, was actually first taken up in October term 2024. There was oral argument. The court was expected to issue a decision by June 2025. In June of 2025, it said, wait a minute, we're going to hold this case over until the next term. They ordered another set of oral arguments, and then they instructed the litigants to answer a new question that the litigants didn't even ask. So this is a question the court was supplying, and the question was whether the use of race in the context of remedying this racial gerrymander violated the 14th and 15th amendments.

1:30:45Nobody asked them to brief that. Nobody wanted that. The court wanted it, and they wanted to get to that question. And part of how they're distinguishing is because of that question and the unique circumstances around that. So that question was not even asked or answered in the Alabama case. And this was just a way to. OK, cool, cool, cool. If the goal was to just gut section two, which it functionally does, why dress it up in the way that Alito did? Is that just his style or do you think there was a strategic reason to do that? Well, I think there's two strategic reasons. One redounds to the benefit of the court.

1:31:19The other redounds to the benefit of non-African American litigants. Let me explain the court benefit first. This is a court that for almost every year that it has had a conservative supermajority has overruled some precedent. So Roe versus Wade in 2022, the affirmative action precedents in 2023, Chevron in 2024. I think if they had actually gutted the Voting Rights Act, basically overruled Jingles, which was the jurisprudence that really laid out the factors for drawing these minority, majority minority districts, that would have raised some eyebrows from a lot of people who think this court is really on one and probably needs to be curbed.

1:32:02So there's that issue. I don't think the court could say we're just completely throwing out the Voting Rights Act. And, you know, for understandable reasons, it would have really galvanized, I think, popular antipathy against the court. The other thing, though, that simply preserving Section 2 does is that it leaves Section 2 available to be used by non-African-American litigants every time a state tries to remedy. So blue states trying to draw opportunity districts, now non-African-American litigants can come in and say, that violates my rights. So in California, for example, this new redistricting effort that is being done to counteract what is happening in Texas and in other red states.

1:32:50If non-African American voters say that the state has drawn this for the purpose of consolidating racial minority groups' political power, then all of a sudden you have a Section 2 claim that can be brought and that the court is probably going to look at. And they're probably not going to think that it's an effort to consolidate partisan advantage. They're really going to focus on the racial aspect of it. All right. The happier news, your new book, which when people hear this will be out, called The U.S. Constitution, A Comprehensive and Annotated Guide for the Modern Reader. Obvious question first.

1:33:27There are a lot of books about the Constitution. Why this one? Why now? First of all, this is for the modern reader. All right. I don't, yeah, like, think about it. Who are you? If you're a modern reader, this is for you. If you're Sam Alito, it's probably not for you. You're not a modern reader. Why now? Because I think we need to engage with the Constitution perhaps now more than ever. This is a document that was meant to be read. It was meant to be debated. And if you ask most Americans, I think very few people have read the Constitution cover to cover, in part because some of it's just really boring.

1:34:00Trust me, I read it and I wrote about it. And I was like, there were times I was like, whoa, article one's really long. But I did it so you don't have to. And I go through and I explain what every single clause is doing, what it's for, what they were animated by when they decided to include it. There's all kinds of really fun stories about the Constitution that you probably didn't even know that are in this book and detailed here. Ordinary people who make claims on the Constitution and manage to affect constitutional change. That's important to know right now. We live in a world where we act like the Supreme Court is the final word on our rights.

1:34:36And I guess that's kind of true unless we take seriously the idea that we can be constitutional changemakers in our own right. And in fact, there are people in our history who have done exactly that and have changed the Constitution and made it more responsive to we the people. Talk about the project of explaining the Constitution to a general audience, the modern reader, if you will, in a moment when its meeting is this contested. So this is not what I would have done on Strict Scrutiny. So one of the things my editor and I talked about at length was whether this was going to be as forthright about my particular take on things as we are on Strict Scrutiny.

1:35:16And we decided that maybe it was just better to sort of explain things, really focus on the history of certain things, and do a kind of one group says this, one group does that in order to give people of all stripes the tools that they need to dive deeper, draw their own conclusions. And I think that was probably the right choice. I think there are certainly some places where my own views come into play in shaping the book. Like, for example, one of the things that I felt very strongly about was being absolutely forthright about all of the ways in which slavery is literally all over the original constitution, even though the document never says the word.

1:35:54But there are all of these compromises, not just the three-fifths compromise, but lots of different compromises about whether or not this is going to be a free nation or whether we're going to allow half the country to own people. And that literally shapes this document. It shapes some of the amendments that we have, and it certainly shapes the way this country tries to knit itself back together after the American Civil War. So those are choices. You do such a great job of making the Constitution and the law feel sort of real and alive. to people who do not have legal degrees. You do that on strict scrutiny.

1:36:31You do that on TV. And now now in this book, what's one thing you want just a regular layperson with no law degree, maybe like myself, to who picks this book up and reads it to sort of walk away understanding about the Constitution, both in what the founders intended when they wrote it and what it means today? Well, let me say two things. One for the reader like you who doesn't have a law degree, and maybe one for the reader like John Lovett, who thinks he has a lot of grief. And for you, Jon Favreau, I'm going to offer this origin story about the project itself. So there was a time, you'll remember this time, when I was in these Twitter streets quite a lot.

1:37:13And I really was. And Twitter was fun back then. It used to be fun. It used to be fun. Anyway, I was in the Twitter streets and Luther Campbell, You may know him as Luke Campbell. I am from Florida, and I grew up in the 90s in the dirty South. So I know Uncle Luke as the lead rapper of Two Live Crew. And he was out here in these Twitter streets talking about all of the things that Joe Biden should be doing. President Joe Biden should do this. President Joe Biden should lower the price of gas. He should do this. He should do that. And I was just reading this litany, and I was like, wow, Uncle Luke has never read the Constitution because Joe Biden can't do any of these things.

1:37:48Like, oh, my God. And that was sort of the origin story of this project. I think I wanted Uncle Luke to know what the president can do, especially now that he's running for Congress. I really hope he'll buy this book and read it, because if he's going to be an elected official, I think this is critically important right now for him. He is the audience. He is the primary audience for this book. Maybe not primary, tertiary, perhaps. I mean, I think this is a book for all Americans. This is the document that scaffolds our government and indirectly our lives. you should know what it says and what it doesn't and what it authorizes and what it does not.

1:38:21You should know that this is a trauma-informed document. When these guys sat down to write the Constitution, they were going through it. They had this period, this colonial period, where England was literally on their necks constantly. So they wanted to have rights, and they wanted to be able to have a society where they were free to do things. But then they'd also just had this revolutionary war against the biggest global superpower in the world. And they were basically trying to fight them with what, which was a government that was made up of like friendship bracelets. And they were like, we actually need a strong central government, but not one that's so strong that it becomes despotic.

1:38:57Like that's the tension. And they try to structure this government that is limited. And we need to remember that. And this is now for John Lovett. But this is a government right now that doesn't feel that limited. And in being unlimited and even excessive in certain ways, that's not in keeping with what they were trying to do and what we have continued to try to do. And what this book reminds us is that there have been times where the people have just said, I'm not having it. I'm not doing this anymore. I want something different. And they've actually stepped up and they've made constitutional change.

1:39:30Fantastic. I'm excited to read this, especially as we head into, you know, America's 250th birthday. I think it's probably a good time to take a look at that Constitution and see where we started and where we are now. I think the 1776 Commission is going to love it. Not going to lie. You think Trump's going to maybe hold it up at the White House at the UFC celebration? I think it might be in the gift bag, the swag bag. The book is The U.S. Constitution, a comprehensive and annotated guide for the modern reader. Everyone go pick it up, please. It is, I, you know, know from talking with you and being a strict scrutiny fan that it's going to be fantastic and you're going to learn a lot and you're going to enjoy it.

1:40:10So take a look. Melissa Murray, thank you as always for joining Pod Save America. Thank you for that great windup. All I will add to it is, we'll be wild. Thank you for having me. Bye. That's our show for today. Thanks to Melissa for coming on. Dan and I will be back with a new show on Friday.

1:40:32Pod Save America is a Crooked Media production. Our show is produced by Austin Fisher, Saul Rubin, McKenna Roberts, and Farrah Safari, with Reed Gerlin, Elijah Cohn, and Adrian Hill. Our team includes Matt DeGroat, Ben Hefko, Jordan Cantor, Charlotte Landis, Kirill Pellaviv, David Toles, Mia Kelman, Ryan Young, and Naomi Sengel. Our staff is proudly unionized with the Writers Guild of America East.

1:41:00Thank you.