Birthright Citizenship + Bye-Bye, Pamela Jo Bondi

26:50Like, boy, you better watch out. We're coming for you too. Like, I thought that was actually masterful on her part. That was giving very a time to kill for me when the lawyer asked the jury to remember the horrific crime committed against the defendant's daughter who was Black, and then the lawyer asked the jury, now imagine the girl was white. And, you know, Cecilia tried to play that exercise with Sam Alito, and it didn't work. He just seemed unmoved. Again, just the abandonment of not just originalism, but textualism. Like, we're just going to pretend that the word jurisdiction actually means allegiance.

27:24We're going to make a whole new word. Why not? People, again, these conservatives have for years acted like progressives just read what they want to into the Constitution. It's not us. We're not the ones doing it. Not us. Nope. Yeah. Anyway. Other justices had very different takes on Wong Kim Ark. So when the Solicitor General, who was arguing against birthright citizenship, attempted to invoke Wong Kim Ark, Justice Gorsuch had this to say. I would first cite Wong Kim Ark on that point because Wong Kim Ark says you're... Well, I'm not sure how much you want to rely on Wong Kim Ark. Neil Gorsuch has drag queen level bitchiness and pettiness, and I just wish he would deploy it better.

28:06Use it for good, not evil. I know. In addition to the clip you introduced, I'm also thinking of this exchange where he's just dripping with disdain. But that's 1898. Now I'm looking at 1868. You're telling me is when I should look and the test for domicile. And the stuff you have about unlawfully present is like Roman law sources you're going to. Again, sometimes the pettiness just hits. And even Brett Kavanaugh's brain seemed to grasp that Wong Kim Ark meant something other than what the federal government was saying it did. And he seemed to be on the hunt for a way to make this case easy enough that even he could write it, as you can hear here.

28:45You mentioned this in your opening, that if we agree with you on how to read Wong Kim Ark, Mark, then you win. So that could be a, if we did agree with you on Wong Kim Mark, that could be just a short opinion, right? That says the better reading is respondents reading. Government doesn't ask this to overrule. Affirmed. Yes. Justice Kagan, as is her want, decided to take Solicitor General John Sauer for a dog walk on Wong Kim Ark. She pointed out how people have, for generations, understood Wong Kim Ark to cement birthright citizenship. And she then asked Sauer what, quote, magnitude of evidence we would need to see in order to accept this revisionist theory and in order to change what I think people have thought was the rule for more than a century.

29:37I mean, ma 'am, say it plain, say it loud. In response, John Sauer basically discombobulated and just started yelling at her, which was the perfect encapsulation of this administration's attitude and approach to the courts, the law, people with uteruses, just generally. Let's have a listen. Senator Trumbull says, I said not subject to any foreign power. I wanted to say born in the United States and, you know, owing allegiance to the United States, but I was aware that there's a, quote, a sort of allegiance from persons temporarily resident in the United States, whom we have no right to make citizens.

30:20So Senator Trumbull says the reason I haven't adopted the language and meaning that they say should be packed into these provisions is that everybody knows that the children of temporary visitors should not be citizens. Thank you, General. this was John Sauer's equivalent of but the Dow. The Dow is at 50 ,000 for me. He saw Pam in the audience and he's like, yeah, I'm going to do that. Game recognize, game girl. Exactly. But game has a job. Exactly.

30:51So we wanted to take a bit, just in case you listened to the argument or have been reading coverage or you want to hear a little bit more, to explain the domicile concept that was thrown out a bunch. So as we've said, the language of the 14th Amendment says if you're born in the United States, you are a citizen if you're subject to the jurisdiction of the United States. The federal government says subject to the jurisdiction means your parents have allegiance to the United States. Note the text doesn't say allegiance, either doesn't talk about parents, but whatever. Textualism. Right, exactly.

31:21You know, the federal government then tries to distinguish Wong Kim Ark by saying that the parents of Wong Kim Ark were domiciled in the United States. They were residents permitted to be there. Note there wasn't such a thing as unlawful status at the time. And the federal government says they were domiciled, permitted, intending to remain here, and therefore were subject to the jurisdiction of the United States, even if they weren't citizens and were prohibited from becoming citizens. Wong Kim Ark does use, you know, domicile and domicile several times in the opinion, likely because the parents in that case were domiciled here, but whatever.

31:53And also domicile can't mean, you know, owes allegiance to the United States because Wong Kim Ark's parents maintain an allegiance to China. They couldn't become United States citizens, and they ultimately returned to China. And also textualism. It's not the same word. And also textualism, and also there's no indication, this is just reading, I'm not sure it's even textualism, that domicile was part of the ruler holding of Wong Kim Ark. And in addition to this, at the beginning of the argument, Justice Sotomayor quoted from the opinion in Wong Kim Ark, which had quoted Daniel Webster as saying, quote, independently of a residence with intention to continue such residence, independently of any domiciliation, independently of the taking of any oath of allegiance or renouncing any former allegiance.

32:40It is well known that by the public law, a non-citizen while he is here in the United States owes obedience to this country's laws, end quote. Shorter, Justice Sotomayor, can you read? Um, unclear.

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36:55There's also just this huge glaring inconsistency in the federal government's position about how to determine what the word jurisdiction means. Because the Solicitor General maintains that the federal statutes that contain the same language as the 14th Amendment don't actually codify the Supreme Court's decision in Wong Kim Ark interpreting the 14th Amendment because the federal government says, well, those statutes use the language of the 14th Amendment. But at the same time, the federal government says that the 14th Amendment and the federal statute guaranteeing birthright citizenship actually mean the same thing as a different statute, the 1866 Civil Rights Act, which uses a different phrase, the phrase not subject to any foreign power.

37:35So just to get this straight. Words mean the same thing as other different words, but they don't mean the same thing as the same words. Textualism. I mean, I'm sure Pam Bondi was listening to this and be like, I cannot believe that I just got fired from the beast and this motherfucker has a job. What? Absolutely not. Yeah. Or she might have been listening to Sam Alito thinking, I can do this. Maybe he'll tap me for the Supreme Court. Girl, you're not getting tapped. You're going back to Florida for a life in the private sector. You don't even have a job at the Shield of the American.

38:14All right. So that's where Justices Kagan and Sotomayor were. That's where the boys were. Justice Barrett also took a fair amount of time making her position on all of this very, very clear. She asked Solicitor General Sauer about how the government's theory that only people whose parents have allegiance to the United States are capable of having children who are born citizens of the United States, how that would have applied to the descendants of enslaved persons. And as she pointed out, people who were captured and enslaved often were brought forcefully to the United States and returned to the United States probably did not have much allegiance to the United States can confirm.

38:58They may have wanted to escape, yet their children were still definitely citizens. As we said, Black Lives Matter's Amy showed up for this argument, and we applaud her. Okay, all lives matter? Not today. Black Lives Matter. Not today. Exactly. Today. All of this to say, the three Democratic appointees are sane, they can read. So by now, it should be clear that the vote count against the administration is at least seven against the administration, with likely one vote for the administration. That would be Justice Alito. There's a wild card here, not surprisingly. And his name is Clarence Thomas.

39:41Yes. And, you know, I guess you kind of suggested you also found him hard to pin down. You know, on one hand, he sometimes seemed to be channeling an inclination to want to say something about how the 14th Amendment was just about the descendants of enslaved persons. So attractive to someone like him. Exactly, exactly. You know, on the other hand, he seemed to ask more softballs of Cecilia Wang than John Sauer. Different people seem to have read him differently. I just could not get a read or have a sense about where I thought he was leading. He loves that kind of argument going back to Reconstruction.

40:18He's done it before with the Second Amendment, like this whole idea that after the Civil War and during Reconstruction, African-Americans were summarily disarmed and therefore you should have a robust Second Amendment because it would have protected them during this period. I can see why the Solicitor General's argument would be so attractive to him. But it would also, I think, fundamentally raise questions about other aspects of the 14th Amendment that I think are too troubling for him to contemplate, like too progressive for him to contemplate. So why don't you know one other person who was at the oral argument other than the president and now former attorney general, Pamela Joabandi?

40:57And that would be Norman Wong, a direct descendant of Wong Kim-Ark, who told the press after the oral argument that, quote, they, that is the justices, will be shamed for history if they get this wrong. Samuel Alito is like, bet. Right, exactly. Don't threaten me with a good time. Vergonya! Exactly. Vergonya! All right, bottom line, just to reiterate, the case should be nine to zero and a clear and simple reaffirmation of birthright citizenship. Actually, the case shouldn't have been heard at all. It should have been decided last year when they did that nationwide injunction. But, you know, here we are.

41:35And the case when it is actually decided, probably in the last day of this term, sometime just before July, that case, when it's decided, will be a gift to this Supreme Court. because generally anything that seems to be good for democracy probably isn't as good as it could be and is always a gift to the court. By rejecting this outlandish position, the court, as Mike Dorff says, will earn credibility as apolitical even as it moves the Overton window far to the right. Yes. Good job, guys. Great job. So the court heard oral argument in another case we also wanted to spend a little bit of time on, and that was in Pitchford v.

42:16Kane. The case is about a technical issue of federal habeas law, but the facts are quite simple and straightforward. So the defendant, Mr. Pitchford, who is Black, was convicted of, you know, basically a murder offense when he was 18. And during Mr. Pitchford's trial, the district attorney, Doug Evans, removed four Black prospective jurors. Now, listeners, if you're like, Doug Evans, why do I know that name? Where have I heard the name Doug Evans before? Well, listeners, you will remember that Doug Evans was the prosecutor who brought you Flowers versus Mississippi, the Supreme Court case where BLM Brett Kavanaugh wrote an opinion concluding that the prosecutor, Doug Evans, had violated Batson, the restriction on removing jurors because of their race.

43:02In Flowers, the state tried the defendant multiple times, only to have multiple convictions reversed for prosecutorial misconduct. At the first two trials, the prosecution removed all of the Black jurors. At the third and fourth trials, the state used all of its peremptory strikes against Black jurors. And at the sixth trial, the one that the Supreme Court reviewed, the state of Mississippi exercised six peremptory strikes, five against Black prospective jurors. And even this was too much for BLM Brett Kavanaugh, who wrote an opinion for seven justices, and it's not the seven that you're thinking of.

43:35And the opinion said, basically, yes, Mississippi, you did a racism. And the two dissenters here were Clarence Thomas, no points for guessing that, and, wait for it, Neil Gorsuch. All right, so, whoo, Flowers versus Mississippi, that was a heady time. That was when we first started this podcast. It was, it was. And, yeah, those early days, anyways. Back to Mr. Pitchford's case, though. So during the 2006 trial, the prosecutor, again, Doug Evans, the artiste behind Flowers, removed four prospective Black jurors. And Mr. Pitchford's defense counsel objected. And the state court basically said, no, all good here, no Batson problem.

44:16And then on appeal, the Mississippi Supreme Court ruled that the defendant had waived, i.e. agreed to forego the Batson challenge, the one that trial counsel had raised during the trial, that the state court judge told trial counsel was, quote, in the record because reasons, and maybe in part because the trial judge who rejected the Batson claim didn't really apply the Batson test anyways. Here's the rub. If the state court is right that defense counsel waived the objection in state court, then a federal court can't review that Batson claim now that Mr. Pitchford's case is in federal habeas post-conviction review.

44:52The waiver argument here is kind of batshit. Not only did the state trial judge tell defense counsel her objection was in the record three times, and the argument seems to boil down to the fact that the defense counsel didn't use the magic word pretext, right? The Supreme Court has established a three-part test for Batson claims. So the first part of the test is that the defense counsel has to object. Check. Then the prosecutor has to offer a race-neutral explanation. And then the court has to determine if the race-neutral explanation that the prosecutor has offered is actually pretextual, i.e.

45:27fake. And in fact, the prosecutor actually relied on race in striking the juror. The waiver argument here goes like this. The defense counsel objected. The trial court said, nope, rejected. So there's no Batson claim. And then the state and several Supreme Court justices, as well as the Fifth Circuit, say that the defense counsel waived the objection by not screaming at the trial court about how they were wrong about Batson and the explanation is actually pretextual, even though it's not really clear what the prosecutor's basis for the objections were since the questioning of the jurors was limited, which would then make it really hard for defense counsel to argue that the prosecutor's somewhat mysterious reasons for striking the jurors were actually pretextual, right?

46:13So again, a lot of this is very fact dependent. The fact that the prosecutor didn't offer a lot of reasons, there weren't a lot of bases for the defense counsel to raise questions around pretext, all of this. The problem, or a problem, is that the state court just cut off the Batson process before all of this could sort itself out. The court just allowed the prosecutor to recite some race-neutral explanations without purporting to actually examine if those explanations were in fact pretextual or to even allow the defense counsel to argue that they were in fact pretextual. And the lawyer for the state, as well as the lawyer for the federal government arguing in support of the state, as well as Sam Alito, really doubled down on this idea that defense counsel should have been more assertive, as you can hear here.

47:00Mr. Perkovich, what happened here is certainly not a model to be followed in future cases. But I wonder if you would agree that in interpreting this transcript, we can take into account the way defense counsel generally behave in a situation like this. Justice Alito, if you could clarify that question of defense counsel's general behavior. Well, this is the most timid and reticent defense counsel that I have encountered. Any competent defense attorney that I knew would have spoken up. Because we all know how much state courts love public defenders who get adamant. Like, come on. You know, wanted to make a wonky habeas note for my fellow habeas nerds.

47:55There's some uncertainty about whether the Supreme Court will say that the state court here made a factual mistake because there actually wasn't a waiver versus a legal one because the state court didn't perform that third Batson step of analyzing whether the race-neutral explanation was pretextual. And federal law in post-conviction creates super complicated rules that are specific to factual challenges versus legal ones. There was also a lot of this could just be a short opinion energy in this case, and it really came from Justice Jackson. And part of me wondered, Leah, if her interest in a short opinion here is to keep her ghoulish colleagues from doing the most if she can.

48:32So let's hear from her. I see this also as possibly a very short opinion. When we look at what Mississippi's Supreme Court said, it would go something like, Pitchford's trial counsel made a Batson objection and re-raised it multiple times. Each time the trial judge reassured her that it was preserved. Nevertheless, Mississippi Supreme Court said it was waived. That's unreasonable. The end. What would be wrong with that? Not anything I can think of. But I mean— This had big, no-duh, dumb shit energy to me, which I was here for. And, you know, just as far as how this case is going to come out, you know, BLM Brett was back for this argument.

49:19So my guess is there is going to be a majority for the defendant here, thankfully. All right. Here we are. Here we are. Wait, what's that me—that gif? Like, mm. Yeah. Yes. So excited for this. this is that that gif of the guy behind the tree looking out and getting ready kind of looking his lips in yeah it's time it's time folks it's time for legal news Pamela Jo Bondi boom there goes the Hunger Games Camden Pamela No Job Bondi Pamela Gandhi No Stick Pam PB Out of J PB Out of a J-O-B so many good names we could go on so many We probably will in our spare time. I mean, what could have made this better is if he had actually nominated Mark Wayne Mullen to be the attorney general.

50:16This is a time. This is a place. Let's go, cowboy. No one should ever say that the president of the United States is not a gentleman because after firing Pamela Jo Bondi unceremoniously in The Beast on the way to the Supreme Court, he wish-casted on the way out. and offered this truth for the graceful departure of Pam. Quote, we love Pam and she will be transitioning to a much needed and important, yet unspecified, new job in the private sector to be announced at a date in the near future, never. And our deputy attorney general in a very talented and respected legal mind, sort of, Todd Blanche will step in to serve as acting attorney general.

51:05Thank you for your attention to this matter, President Donald Trump. So let's just step back to observe the arc in Trump's second terms, Attorneys General. So initially, one— Okay, can I just say— Yeah, go ahead. Can you imagine, like, Janet Reno in heaven? Oh, my God. Eric Holder, Loretta Lynch watching all of this, like, what the actual fuck? Like, this whole arc is so messed up. It is, and that— 14 months. Yeah. 14 months. Yeah. Of course, we all remember initially Trump wanted to select and nominate one, Matt Gaetz, for attorney general, the guy accused of paying minors for sex. I believe Lear referred to Matt Gaetz as a frat paddle that became a real live boy and attorney general nominee.

51:53That one. And from there, we then went to Pamela Jo Bondi, who, of course, one of the most associated moments and images of her tenure is a photograph of her refusing to turn around and acknowledge the Epstein survivors during her congressional testimony. But she did acknowledge the stock market. She did. She did. But the Dow. She did. But the Dow was at 50 ,000. And now, at least for acting, we are getting Todd Blanche, Trump's personal lawyer, who met with one Ghislaine Maxwell and may have arranged her transfer to a lower security prison. And who once had this to say about Jeffrey Epstein? So take a listen.

52:38Is there any chance that any of these individuals who partied with Epstein and engaged in, you know, relations with minors will be prosecuted? But look, I'll never say no. And we will always investigate any evidence of misconduct. But as you know, it is not a crime to party with Mr. Epstein. Again, not unconstitutional to have parties. It is so clear that Todd Blanche was auditioning to be America's next top attorney general last weekend at the CPAC convention, where he just said outrageous, outlandish shit about sending ICE agents to polling places. Like, he was auditioning. He knew that there was chum in the water for Bondi and that there was going to be a shakeup at DOJ, and he wanted to put himself in the right place.

53:28Except Ghislaine Maxwell. Like, my dude, you are unconfirmable. There's no way you could be confirmed. Not only were you his personal lawyer for the hush money thing, not only have you helped orchestrate all of these retributive prosecutions against people who have literally done nothing except dissent against this president, You also seemed to have something to do with the transfer of Ghislaine Maxwell, or at least that is the appearance of it. Like, you're not going anywhere, sir. And that is why he called you the acting attorney general and why he is literally considering three other people, one of whom may be a box of wine, to be the actual attorney general.

54:09Okay, let's break down what happened with Pamela Jo Bondi. It was so promising. That's not true. It was never promising. Okay. So one of the apparent problems that the president had with Pamela Jo Bondi was that she was insufficiently effective at mounting political prosecutions. And I don't know, I mean, I feel semi-bad for her. I actually don't feel bad for her. It wasn't really her fault. It was, you know, the Constitution and the public and judges and jurors who refused to go along with this, but she did catch a lot of the strays. Why not blame a woman for everyone else's mistakes? I mean, I will say, like, she should have stood up to him and been like, sir, this is absolutely ridiculous.

55:00You should not be doing this. But we knew she wasn't capable of that kind of metal. So it was never going to happen. But this could have happened to, honestly, anyone. This could have happened to Matt Gaetz if he refused to do it. Because we have alluded to this moment, we do want to invite you to relive one of Pamela Jo Bondi's greatest hits when we thought she had short-circuited during her congressional testimony. So here you go. The Dow is over$50 ,000. I don't know why you're laughing. You're a great stock trader, as I hear, Raskin. The Dow is over$50 ,000 right now. Just remember, people, Pamela Jo Bondi may be out, but the Dow, the Dow is at whatever it is.

55:45I mean, this is the bravification of Pamela Jo Bondi. And I kind of knew when it happened, she was not long for this world. I mean, Kristi Noem had a similar kind. I'm like, ladies, don't go testify before Congress acting like a housewife. Well, this is why they need to get Stephen Miller to testify before Congress. Right? Just parade him out, dog walk him, humiliate him, and get him the F out of town. I mean, just— That's my advice. Yeah. More seriously, we all deserve this moment of schadenfreude with Pamela Jo. We earned it. In the last year, federal judges have described how she, quote, lost the, quote, trust that had been earned over generations, quote, destroyed the presumption of regularity, and, quote, lost the trust and confidence of legal communities and the public.

56:34Like, we can all mock her failures, and there were many. but she did a ton of damage and she succeeded at a lot of unlawful aims including the still pending vindictive political prosecution of, for example, Representative LaMonica McIver. Okay, let me just say here, she could have been anyone, right? I mean, like, just to be very, very clear, this is all, the rot comes from the top. This is the president literally dictating the policies and priorities of the Department of Justice. To be very clear, an actual attorney general who took seriously their oath as a lawyer would stand up. But that's not going to be anyone here.

57:13So like this literally could have been a head of lettuce leading this department and the same thing would have happened. But it is delicious that it was Pamela Jo Bondi and then that she got literally dog walked and kicked out the way she did. Speaking of deliciousness, I do wonder if we need to launch a spring or summer drink to pour one out in honor of one Pamela Jo. I know. It can be Prosecco. Oh, that's good. That's good. Okay. Fire Bondi or Fire Bondi. Oh, okay. I'm thinking. Okay, that's my nomination. We have to keep thinking on this. We have to think about some of these. These are, this is great.

57:53I want to think of something with like a spritz in it. Oh, yeah. I see that. I see that. Like instead of a Hugo spritz, a Pamgo spritz? Okay. I know you're not loving it, but I do. I love elderberry. Elderflower, whatever's in that. Something with like aporal, aporal, epamerol. Apemoral. Anyways, we'll workshop this. We'll workshop it. Speaking of drinks, other Trump officials have also been covering themselves in glory, and yet they've somehow managed to hold on to their jobs. Even in the face of incompetence and malevolence, this administration still manages to squeeze in a little light sexism.

58:30So Kash Patel, FBI director, apparently fell for a phishing scam that compromised his emails. In addition to Kash covering himself in glory, the Financial Times reports that, quote, a broker for Pete Hegseth attempted to make a big investment in major defense companies in the weeks leading up to the U.S.-Israeli attack on Iran. What do they call this in the law, Leah? Attempted deal dough, also known as insider trading. Yeah, or public corruption. I mean, you name it. But obviously Uncle Drunky wasn't going to be fired for trying to get in on the grifty deal does. You know, perhaps another reason he might not have been fired is what NBC News reported, namely that Hegseth has apparently intervened to stop military promotions for more than a dozen senior officers.

59:21Which ones, you ask? Well, the story notes that his interventions have, quote, raised concerns that he may be targeting officials because of race and gender. Hegseth intervened to block or delay promotions for more than a dozen Black and female senior officers. He has also been firing senior military officials while conducting this unplanned rudderless forever war that has not achieved any of its objectives and just created additional problems. Is this DEI? Right, exactly. Yes! Dick, ex-husband, incel, imbecile, you name it. All right, on to the institutions that are actually covering themselves in glory.

1:00:01We got several big district court opinions last week. And for those who might not know, every six months, the federal trial courts have to submit reports about how many cases remain outstanding and pending. This creates pressure on the district courts to release opinions before those dates. This is known as the six-month list. One of those dates that is relevant for the six-month list is March 31st. And not surprisingly, we got a big batch of opinions. So Judge Leon in the District of Columbia halted the construction of the president's ballroom in the White House. And in typical Judge Leon fashion, there are many exclamation points.

1:00:45And we love it. The opinion— You can hear those exclamation points. I love it. Love it. Pound the tables. The opinion begins, for example, quote, the president of the United States is the steward of the White House for future generations of first families. He is not, however, the owner! Exclamation point. Judge Leon then said, quote, the National Trust is likely to succeed on the merits because no statute comes close to giving the president the authority he claims to have. Judge Leon then referred to that claim of authority as, quote, a brazen interpretation. Indeed. What a performance. What a performance.

1:01:33Judge Leon, we loved it. Well, I was referring to yours as well. Like, we're not, like, honestly, we're not making fun. We love an exclamation point in an opinion. If you can put craptastic in an opinion, we are here for it. Okay, so Judge Mehta, also in the District of the District of Columbia, held that some of the civil lawsuits against Donald Trump for actions on January 6th could proceed because the suit's concerned actions taken in Donald Trump's private capacity rather than his official capacity. And then Judge Moss, also in the district court for the District of Columbia, held that the executive order freezing funding to NPR and PBS was unlawful.

1:02:12And now, a bad decision, because bad decision season never stops. A district court held that the Trump administration can demand and obtain information from the University of Pennsylvania that identifies Jewish faculty and students and specifically groups and organizations on campus related to Judaism and that it can get, you know, individual personnel and membership information. The opinion is, in my view, pretty like tone deaf and callous and dismissive of what I think are legitimate concerns with handing over this information to the administration, but that's my note. Article 2 also issued some opinions.

1:02:50Yeah. The president, who was definitely on one, issued an executive order purporting to restrict absentee ballots. Just to be clear, this has the same legal force and effect as if a frat boy wrote it on a napkin at a bar and puked on it and then wiped his face. Executive orders can't change federal statutes. The president also doesn't have the authority to set the rules regarding federal elections, as the Constitution reminds us. But nevertheless, this was all the president's effort to sow more and more chaos as we careen toward the midterm elections. And then the Office of Legal Counsel decided to one-up the president and issued an opinion declaring the Presidential Records Act, a law that just requires presidents to keep records of official business is, you guessed it, unconstitutional, an infringement on the executive power.

1:03:51Because federal laws that tell the president to do things are apparently unconstitutional because they interfere with the president's power to take care that the laws be faithfully executed. It does not make sense. And, you know, the attack on the Presidential Records Act kind of teed up this question for me, which is, what the fuck are these guys hiding? Like, what do they not want to keep records of? Because what they're doing out in the open is already bad enough. I just want to be clear for our listeners. We laughed when we said that Article 2 issued some opinions. It's kind of funny, but it's not really, right?

1:04:28So these executive orders are basically the president's attempt at constitutionalism. And they have nothing to do with reading. They have nothing to do with reading the Constitution. This is the president wish-casting what he wished the Constitution and relevant statutes said. And there will be lawsuits, I'm sure, challenging all of this. But there is something to be said for how he sort of normalizes these ideas by putting them out there. And so we feel like we are obliged to remind you, again, that these pronouncements, whether it's from OLC or the president, these are not the law. These are basically frat boy musings and wish casting.

1:05:09And part of ensuring they're not the law is insisting they are not the law. And— Yeah. So keep saying that part. Exactly. Right? When I— This is frat boy wish casting. That's what this is. When I saw this OLC opinion, I thought I heard a sound. And that sound may have been one professor, Alon Wurman, preparing an op-ed arguing that Congress itself is unconstitutional. So Alon Wurman is one of the right-wing professors that, you know, went on a bender trying to justify the president's illegal executive order. At one point during the oral argument, Solicitor General John Sauer invoked his amicus brief, which was definitely a sign the oral argument was not going well for the federal government.

1:05:51And when that happened, Elie Mistal, who was live blue-skying the argument, said this reminded him of that moment from Arrested Development where Tobias Fuque is like, there are dozens of us, dozens. And I just, I loved it. Anyways, the reasoning in this OLC opinion, such as it is, is like extreme unitary executive theory where extreme and executive are words that begin with the letter X. It maintains that Congress cannot expropriate the papers of the chief executive. Those are papers that Congress paid for and appropriated to the president. Like the next thing they're going to tell us is that Congress can't take back the chief executive's ballroom.

1:06:33And the OLC opinion also claims that the retention of presidential records serves no valid legislative purpose. Like, these guys have truly lost the plot. All right. Again, just what is this timeline? What is this? I don't know. Anyway, it's so exhausting with an ex-austing. All right. Briefly, some notes on the other cases that were argued last week at SCOTUS. So the court heard Abu Amo versus United States, which is about venue in criminal cases. Venue is about where a case can and should be filed. The specific question in this case is whether venue is appropriate in a district where the event's conduct, that's the stuff that constitutes the crime, didn't happen, but that the defendant's intent contemplated would have effects in the district.

1:07:30So the case was argued the day after the huge No Kings protests that occurred across the country. And that seemed to be on some of the justices' minds. So for example, Chief Justice Roberts asked a question about the Boston Tea Party, and he directed this to the government. And he said, quote, the Boston Tea Party takes place entirely in Boston, but it causes effects back in England. And so why can't you say it's all right to take these cases to England, as in that can't possibly be right. Justice Alito's mind also went to a similar place, which you can hear right here. You're trying to defend this particular conviction, and I understand that.

1:08:13But maybe when you're told that what you're doing is a violation of the Declaration of Independence, you might think about what seems to me the more important point for lasting significance. Pot, kettle, my guy. Like when people tell you you're violating foundational principles, maybe you too should pause and reconsider your life's choices. There was a lot of weird No Kings acknowledgments slash celebrations going around among these guys. So here was Pete Hegsetz. I think the president was clear this morning in his truth that there are countries around the world who ought be prepared to step up on this critical waterway as well.

1:08:56It's not just the United States Navy. Last time I checked, there was supposed to be a big, bad Royal Navy that could be prepared to do things like that as well. I have to say, celebrating No Kings and America's 250th birthday by asking the Royal Navy for help. Is America great? Just ask Meghan Markle. Is America great yet? Not yet. you know, like again, do these people fucking read? No, they don't. Do you know any history? Oh my God. You know, back to this particular case, the argument was a little hard to read. You know, if I had to guess, I think maybe the justices were leaning toward the defendant, you know, not clear what the grounds would be.

1:09:35The court also heard argument in Jules versus Andre Balas properties about arbitration stays. If the name Andre Balas sounds familiar to you listeners, it's because back in the go-go late 90s, early aughts. Andre Belas was a hotelier who was hanging out with all the hotties. He took out Uma Thurman. He, I mean, all the folks. I mean, he, he was, he was on the pages. Everyone knew him. In any event, this case is not about that. It's about arbitration stays. That's right. Arbitration stays. So the case is a follow-on to Badgerow versus Walters, where the court said that the

1:10:19The question here is whether federal courts have jurisdiction to confirm an arbitration award in a case over which the court has jurisdiction to compel arbitration. But I do recommend the entire oeuvre of Andre Bellaz's dating life from the late 90s and early 2000s. Very, very interesting. So the actual case kind of comes down to whether the Federal Arbitration Act kind of creates its own jurisdictional universe and exceptions or whether arbitration cases are subject to the more general rules about supplemental jurisdiction. This argument was also a little hard to read for me. I read the court as initially skeptical of the petitioner's argument that there's no jurisdiction.

1:11:00It's possible. The advocate, Adam Unikowski, made some headway. Justice Kagan, who's the author of Badgerow, asked, you know, the person arguing second respondent tough questions. But then there were no questions for the respondent during the seriatim portion of the argument, which is often a sign, you know, that that side might win. This was also the second argument of the day, though, so it's possible the justices just got tired, which also was maybe evidenced to me by this question from Samuel Alito. Just out of curiosity, do you think we should ask Claude to decide this case?

1:11:36No, I adhere to the wise judgment of this court. I mean, honestly, relatable. First relatable moment from him ever. Also a reminder, we got the court's opinion in Childs versus Salazar. That was a challenge to Colorado's conversion therapy ban. Leah did a short emergency episode with Shannon Mittner of the National Center for LGBTQ Rights. Definitely take a listen. It was fantastic. But again, we have a couple more big cases on trans rights coming down from this court this term. And this was an early reminder that it's not going to be great.

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1:14:48I wanted to just briefly acknowledge the news. It's been reported that Sam Alito was taken to the hospital after a Federalist Society event back on March 20th and, you know, was released after being treated for like dehydration or whatnot. So we saw the news. I'm just not sure there's that much to say about it. But now it's time for our favorite things. So as this episode has basically made clear, this has been a week, and I've got a lot of favorites. There were no Kings signs. One of my favorites, wait, is this the TSA line? I loved it. Also, all of the heated rivalry signs. You know, those were also amazing.

1:15:29Jamal Bowie had a fantastic article in the New York Times, the Birthright Con. um also this past week we sent emails uh to the people who won merchandise inspired by melissa's forthcoming book the u.s constitution a comprehensive annotated guide for the modern reader and the responses were just so endearing i loved reading those um so thank you everyone for entering i i mean i i loved reading them too but i just i gotta give you some props what a great giveaway shirt it's such a cute shirt constitutional af maybe we'll do another giveaway maybe we'll run it again. We should. I'm sure James Madison was sitting there.

1:16:05You have already given James Madison such a glow up with this book. I mean, but they're all just like, I wish we'd thought about that constitutional AF. We should have just put it in there. Oh yeah, for sure. We should have done it. Yeah. So other, other favorites of mine. Oh, I'm not done, Melissa. Okay. All of the coverage of Christy Gnome's cross-dressing husband injected into my veins. You know, there was this meme going around about fuck, marry, kill, you know, as Kristi Noem plays it with Corey Lewandowski, her dog Cricket, and her husband. Cannot recommend that enough. Emily Amick made a wonderful video providing him some, her husband, some advice about bras for the big boobies.

1:16:48And then add to that all of the dancing on Pam Bondi's grave. You know, for the people who are going to get into my DMs and call me sexist for coming after all the women in the Trump administration. I will just quote Mr. Bennett from Pride and Prejudice and say, send them in. I'm quite at my leisure. Also, Melissa, you guest hosting The Beat the night Pamela Jo Bondi was fired. Oh, my gosh. Sometimes karma works out, and it's real. And I loved it. It was a fun night. I'm not going to lie. Not going to lie. Still not done. Wall Street Journal's Rachel Bachman and Justin Leihard had a fantastic story about the WNBA players relying on Claudia Golden, a Nobel laureate, to help negotiate, you know, more equal pay.

1:17:35I loved reading that. Two other things that are a little bit favorite slash promotional. So the paperback edition of my book is going to be coming out on June 16th. And apparently, that release date means I'm going to be competing with J.D. Vance's shitty forthcoming book. And you can preorder copies of my paperback book and get them signed. So my local independent bookstore, Literati, is running this. So you just go to their website. We'll include the link in the show notes. And you can order the book paperback version with a signed copy. And I know you're not usually supposed to do this, but I'm me and I couldn't help myself.

1:18:13I wrote a new chapter on the Unitary Executive. I made updates to all the chapters. The publisher was like, this is a new edition, girl. Like, this is going to take more time. And I was like, I don't care. I love new edition, both the band and this new iteration of your book. Exactly. Exactly. So I had a lot of fun doing that. And then on the podcast front, we have been nominated for a Webby Award. Say it like Judge Leon would. A Webby! For the Webby Award! For the best politics and opinion podcast. But Webby's are determined by votes. And we could really use your help in voting. And so please check out the link in the show notes and consider voting for us for a Webby Award.

1:18:56Please vote for us for the Webby's. We are going to give such a great speech, an acceptance speech for the ages. Oh, you know it. This episode just gave you a flavor of all of the things we might say. We're going to leave Kate at home. No. We'll bring her. Kate, we love you. We love you, Kate. Last week, you attempted to recite a line I gave you about the consummation court fucking the country and democracy. And she just couldn't get it out. And I was just like, oh, yeah, Leah said this thing about the consummation court. But I appreciate the effort, girl. I see you. We see you, Kate. Kate's on vacation, but we know she's interviewing for a high-level position.

1:19:35Okay. All right. My favorite things. I read a terrific new article that is forthcoming in the UCLA Law Review. It's called Parents as Regulators, and it's by Arizona State law professor Caitlin Mallott. The paper is— I love her work. Her work is fantastic. I've been relying on it a ton. She's a junior scholar. I've been relying on it a ton in one of the articles I'm working on. She's great. Great. She's my research assistant once upon a time, so maybe I'm biased, but I think she's just doing some of the best work. I didn't know her at all. Love her stuff. She's great. So this paper is so interesting.

1:20:03It focuses on Mahmood versus Taylor, which we, of course, have covered a lot. But it sort of goes into this question about parents' rights. And she notes that the whole concept of parents' rights was sort of born in this milieu that was really focused on the private side of things, like what happened in the home. And like parents exercising their rights mostly were confined to the home. But now in the context of schools and the sort of veto that parents may exercise post Mahmoud, when the parents exercise their rights, it's not really in the private context. it has public consequences. And in that sense, it functions more like regulation.

1:20:40And we ought to understand it as a species of regulation. It's very, very smart, really fantastic. I think she's doing some of the most interesting work at the intersection of family law, education law, and gender. People should really be looking at her and reading her. I also read Harlem Rhapsody for my book group. It's by Victoria Christopher Murray. No relation, but I'm all here for Clan Murray. I'm always rooting for Clan Murray. And it is about Jesse Redmond Fawcett, whom Langston Hughes referred to as a midwife of the Harlem Renaissance. And it is juicy, though. So I learned a lot about the Harlem Renaissance, but I also learned that maybe Jesse Redmond Fawcett and W.E.B.

1:21:25Du Bois were kind of an item and she was his sort of side piece. A lot going on here. And I was here for all of it. I also want to recommend for those of you who are going through the college admissions process, it just wound down. And I see you because that was fucking crazy. And I would love to kill it with hot fire. So if you made it out to the other side of the college admissions process, give yourselves a pat on the back. If your kids made you crazy the whole time, give yourselves a pat on the back. and congratulations to all of you just for making it through and your kids are going to be great.

1:22:02For those of you with little kids, I have a great suggestion for a podcast. It's called My Boo Buddies. And it's so delightful. These little kids that I met on vacation were listening to it at the pool. And I was like, what is that? They're like, it's a podcast. And I'm like, you listen to podcasts? They're like, yeah, we listen to the podcast. I'm like, well, have you heard of Strict Scrutiny? They're like, no, what's Strict Scrutiny? This is My Boo Buddies. And so I was like, well, what's My Boo Buddies? Apparently, it is a kid-friendly mystery podcast that's packed with laughs, light scares, and lovable ghost pets.

1:22:33It's really cute. It's about a Latino family that inherits a house in East Hampton, and hijinks continue throughout as they meet a bunch of ghost pets. And I know it sounds just insane, but these kids actually loved it. So if you need something to keep the little ones in your lives busy, I highly recommend My Boo Buddies, because all I know is this mom was at the beach. She was chilled. She was chillaxing. She had a pina colada. And these kids had my boo buddies. So if you want that for your life, hop on it. Also want to say that the day before I anchored the demise, old yellow ring of Pamela Jo Bondi, I got to anchor the launch of Artemis II.

1:23:18That was so cool. The first crewed lunar mission in the United States since 1972. And I have to say, I'm pretty jaded. This actually warmed just the depths of my cold, dead heart. It was really, really amazing to watch. And I did love following it. Right. And one of the people who was on the show that I was leading, anchoring, said, you know, now little kids are going to want to be astronauts for Halloween again. And I was like, oh yeah, I haven't seen many astronauts. Like that used to be a big thing when I was a kid. People would dress up as astronauts and not so much anymore. And, you know, it was nice.

1:23:56And it was nice to see that America can do amazing things. Really amazing to see that the crew of Artemis II was so diverse. The pilot, Victor Glover, will be the first African-American on a lunar mission. The mission specialist, Christina Koch, is the first woman in a lunar mission. And there is a Canadian mission specialist. It was just so interesting in this moment where we seem to be wanting to kill DEI with red hot fire, where it actually seemed to be working. Interesting. Yeah. So, all right. We've got some housekeeping and it's big. It's very big. Okay. All right. I'm going to prepare myself.

1:24:37Okay. So June has the honor of not only being Pride Month. Pride Month! Yay! Yay! Pride Month! Pride Month! But also the month when the Supreme Court often makes its most controversial and worst decisions. Boo. Yes, June is complicated, but luckily this June, we, Strict Scrutiny, are coming to New York City to help all of us get through it together. Live show! You want to tell people when? Live show! Live show! So you can catch Strict Scrutiny live at the historic Gramercy Theater on June 20th as part of our Bad Decisions tour. The pre-sale will begin this Wednesday, April 8th at 10 a.m. Eastern time.

1:25:21Now, the pre-sale only lasts two days, so get your tickets before they sell out. And the code is... Vibes! Vibes! Vibes! That's V-I-B-E-S. So, hope to see you in New York. We better see you in New York. And Judge Leon, big, true, scrutiny, energy.

1:25:49Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Littman, Melissa Murray, and Kate Shaw. Our senior producer and editor is Melody Rowell. Michael Goldsmith is our producer. Jordan Thomas is our intern. Our music is by Eddie Cooper. We get production support from Katie Long and Adrienne Hill. Matt DeGroat is our head of production. And thanks to our video team, Ben Hethcote and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app and on YouTube at Strict Scrutiny Podcast so you never miss an episode.

1:26:22And if you want to help other people find the show, please rate and review us. It really helps.