Our Favorite Things, 2025

25:53Anyway, you can get them. We welcome our UNC listeners, just to be clear, Melissa. I'm just kidding. I'm just kidding. We love UNC. They're so great. Anyway, so highly recommend those. And right now, because it's getting cold in New York, I have longed for a hat that will not mess up my pixie. And I found the Waste Soft Cashmere Beanie on Amazon. It's a little pricey. It's about$65. So like for a hat, you might lose. So you got to hold on to it. But it's really like oversized. So it doesn't push your hair down and it keeps your coiffure in good shape. And you just like take off the hat and just like sort of fluff your hair and you're fine again.

26:33Highly recommend. Great. I need more like Melissa enabling kind of shopping in my life. I just don't. I almost never buy anything. I do text you things and you don't respond. Yes. Okay. Cause I'm, don't stop doing it. I'm receptive. I just am sometimes indecisive. But I do think like at least half of the t-shirts I wear. My friend Isa is always saying that. Just like, just let me just go shopping for you. But I would say half the shirts I wear on my body are like ones designed by Leah. It's just like, they're great. So I will re-recommend Leah Lipman t-shirts of the world. Our merch store on the website for the podcast, the Strict Scrutiny merch, now has at least two baby onesies in the collection.

27:13That is new. And she loves wearing those too. I personally do not. And yet something to wear is the general category we are in. And I have a tiny new baby nephew. I only hesitated because I was like, I think it was going to be, I ordered him a couple of these, but I don't think his parents listen to my podcast, so I think it's fine. I'm not going to ruin the surprise. But if you have babies in your life, get some of our onesies. And then the last is since we talked about Cozy Earth, which is the maker of that bubble blanket we were talking about, they also make really nice clothing. And I have a pair of their studio wide leg pants that are just like at-home pajama kind of trouser pants that I often do also wear out of the house.

27:50And they are so soft and so comfortable, and I am completely obsessed with them. And this conversation is making me remember. I've worn them so much they're getting a little frayed at the bottom I should probably get another pair I love them you know where they're great for wearing where to the airport I wear them on the Amtrak I usually take the train but I definitely no no oh when you want to stick it to Sean Duffy no because they're also cute they don't look schlubby they actually look they are they don't look schlubby but they are I don't think women are allowed to wear pants in that world oh that's true that's true like you will be sticking it to him you're in your lounge wear and your lounge wear is pants and you are a lady good point All right, Jordan, you're up.

28:27I'll double down on the strict scrutiny gear. It's basically all I wear these days. I'm wearing my beautiful lawless hoodie right now and can never get enough of it. I also want Crooked gear. I was at Crooked Con, one of the highlights of the year for sure. But by the time that I went to try to get merch, they actually had close a merch stand, which is very unfortunate. We are going to fix this. We are going to hook you up with some gear. That is good to know. But I did see online, you know, follow Crooked on Instagram and all your social media channels. And I saw that you can actually go online and get some of the merch that was at Crooked Con.

29:00So if you, like me, missed your chance to get merch, something to wear is to go on to the Crooked site and look at their store. They have a very robust offering of items that I hope to get and to wear. Aside from strict scrutiny or Crooked gear, I need a new set of jeans. And I love dark wash jeans. I love the look of them. You can pair them with most types of outfits and you can sort of wear them down, wear them up. And so I'm in the market for dark wash jeans. And I love this brand called Mavi jeans. So something to wear. They have a nice dark wash style. They have a darker sort of off gray, black if you're into that, you know, for the goth people amongst us.

29:36Or if you're just looking for something to pair with a nice sort of top that needs a black bottom. Mavi jeans are amazing. They look great. They feel great. I need some Mavi jeans. Can I ask a question, Jordan? Yes. Is it Mavi, M-A-V-I? M-A-V-I, Mavi jeans. That's from the 90s, Jordan. Like all of your picks are from the 90s. I'm an old soul. We are learning something important about you, Jordan. I'm an old soul. Are we going to say the 90s is old school, old soul? Yeah, Jordan, this feels very – Let's noodle over that one. What can I say? I wear Mavi jeans. I use pink moisturizer. I listen to Evanescence and Third Eye Blind.

30:16What can I say, Melissa? This is great. This is why we get along so well. Jordan, basically, you're a 50-year-old woman is what you're saying. I'm fine with that. I love it. Okay, so one quick addendum before on to something to read. I am wearing this cardigan that Melody got me for my birthday, and I'm obsessed. It's a secret cardigan because Taylor hasn't actually made a reputation cardigan, but this is a reputation cardigan, and I love it. Okay, so on something to read. I am only going to recommend fiction. So Alison Esbach, Wedding People. Anything by Julianne Long. I especially enjoyed the Penny Royal Green series.

30:59Lisa Clayposs, The Wallflower Series was my favorite. I love Sarah McLean's These Summer Storms. V.E. Schwab's Bury My Bones in the Midnight Soil. Liz Moore, God of the Woods. All just fantastic books. You can get them all at bookshop.org and support your local independent bookstores. I also joined Book of the Month, which I really like. Just a gift that keeps on giving. You get to select a different book every month from among their great recommendations. It's just super fun. Also in the category of fiction, something I wanted to highlight is the conservative slash Republican justices on the Wisconsin Supreme Court, their fiction, just like making shit up.

31:40So by way of background, quickly, the Wisconsin Supreme Court appointed some three-judge panels to hear challenges to the state's court-adopted congressional map. That sounds weird. Just let it slide. You know, when the court was still conservative slash Republican-controlled, they adopted a congressional map. You know, the procedural posture isn't worth getting into right now, but the court adopted the map and said it complied with the Constitution. Now some plaintiffs are challenging the map, which is an extreme partisan gerrymander. You know, the map was drawn using the state legislature's extreme partisan gerrymander as a jumping-off point.

32:10Anyways, several of the conservative justices on the court had an absolute fucking melty and got big mad when the Supreme Court appointed these panels to hear these challenges. And apparently they were so out of their minds, they hallucinated quotes from Supreme Court opinion. So Justice Ziegler, for example, quoted the United States Supreme Court opinion in Moore versus Harper in saying that state court's role in congressional redistricting is, quote, exceedingly limited, end quote. That quote does not appear in Moore, and Justice Ziegler has since modified her opinion, but in ways that are nonsensical.

32:44So now her opinion says state court's role in congressional redistricting is exceedingly limited and cites Moore. But it cites the passage in Moore that just says state courts may not transgress the ordinary bounds of judicial review in election cases, i.e. that they have a normal role. You know, the opinion is laced with accusations. It, you know, has many different sections, including a part titled A Pattern of Partisan Judicial Activism. Justice Rebecca Bradley also has a dissent. And since I love my girl, Rebecca Bradley had to read a line or two from it. Quote, I'll just go with the ending.

33:15The majority nevertheless entertains yet another kick at the redistricting cat. Unlike Schrodinger's cat, this one most assuredly has been dead for years. I dissent. End quote. Girl, this one did not work. You know you got to do a wolf, not a cat. Right? She missed the memo. Their opinion. Not even in the right family. Exactly. Exactly. Like these opinions have big like we are infallible because we are final energy. Like how dare you criticize us? But a challenge to this map could undo one of the worst Republican leading partisan gerrymanders in the country. So definitely a case to watch. OK, I'm going to be a little shorter.

33:53No shade, Leah. That was great. But I don't have a lot of long quotes from unhinged state Supreme Court justices to read. As I said, fiction. Right. OK, so nonfiction. I'm just going to do a little bit. I had hoped to be able to say on this pod, I finally finished reading Robert Caro's The Power Broker. But I cannot say an untrue thing. And I am so close. And yet I am not done. So I really hope that by the time we get to 2026's favorite things, and hopefully well before I will be able to say I'm really done with it. But it's amazing. It's just so fucking long. But I'm inside of the finish line.

34:27Other kind of nonfiction books that stuck with me this year, Michael Lewis's Who is Government, The Elon Musk biography by Kate Conjure and Ryan Mack called Character Limit was really, really good. John Witt's The Radical Fund, we had John on the show to talk about it. Those kind of really stuck with me from the last year. And just a couple of fiction books to recommend or re-recommend. Allegra Goodman's Isola, So Beautiful, Lily King's Heart the Lover, which I've already recommended, Kaveh Akbar's Martyr, and Ben Shaddock's short story collection, The History of Sound. Every single short story in that collection, which is not my genre.

35:00Like I'm not a short story fan normally, but I absolutely adored these short stories. All right. Nonfiction, Tina Knowles' Matriarch. Loved it. I know everyone thinks it's just a little Destiny's Child confessional, but there's actually a lot of Black history. She talks a lot about her childhood growing up in Galveston in this very tightly knit Black community. her work in Houston, how she basically transformed her daughter into one of the world's biggest pop sensations. So yeah, like Miss Tina is doing all the things and you should definitely get on that. I also loved Imani Perry's Black in Blues.

35:41Imani Perry is a former law professor. Now she's just a professor, not just a professor at Princeton, but she's left the law game. And she's just crushing it. She's one of the most formidable thinkers, I think, of our time. She wrote this fantastic book, South to America. This is the follow-up, Black and Blues, where she talks about the linkages between blackness and the color blue. So there's a lot of meditation on the blues, obviously, but also black blue and what it means to have color in the absence of color. She's a wonderful writer, a serious thinker, and someone that should be on everyone's radar.

36:18Some of you know that my favorite author is Jane Austen. And so I really enjoyed Rebecca Romney's Jane Austen's Bookshelf, which are like all the things that Jane Austen and her sister Cassandra used to read as they were exchanging letters. And she was basically being a petty bitch writing stuff about people in her village. And like, that's my energy. And so I enjoy it. I enjoy Jane Austen. I love her petty vibe and highly enjoyed this book. In terms of fiction, I think, Leah, you like this one too. I really enjoyed Taylor Jenkins Reads' Atmosphere, which is a book. I guess you might call it historical fiction because it takes place in the 1980s as the space program is sort of just getting off in terms of the shuttle program.

37:02And it's about a group of astronauts. You might like this, Jordan, since it takes place in the past. There's also Marie Bostic's The Book Club for Troublesome Women. I picked that up because I thought it was about our podcast, but it really wasn't. It was about something else, but I enjoyed it a lot. And then I also really want to recommend The Loneliness of Sonia and Sunny by Karen Desai. It was shortlisted for the Booker Prize. I personally think it should have won. I thought this was one of the best books of the year. So before we go to Jordan, Kate and Melissa. Any other nonfiction books you especially enjoyed this year?

37:36Oh, geez, that was this year. Everyone. Everyone. I mean, I thought that was obvious. I know. And Jordan actually gets the gold medal for wearing the sweatshirt. But Leah Lippman's Lawless is a book that was... How do you know we weren't seeding just Jordan to talk about it? How do you know that? Maybe you pulled the trigger too soon. Maybe you're giving it to the intern. Because he is an excellent hype man. I wanted to put you two on the spot and not him. Yes, but I think he probably would have done it organically, but yes. Let's let Jordan go. Let's let Jordan go. All right. I'm not going to preempt him, but I will say I do co-sign the endorsement of Lawless that Jordan is about to make.

38:14Go ahead. Go, Jordan. I was actually going to lead with Lawless, so you two are off the hook. It's my top book of the year. We knew that. I just think it's really unique for the genre. It's so accessible. It's funny. it in many ways brought my mom and dad up to speed on what's happening at the courts. It's always wonderful when I could speak with them about what's going on. So Leah just did a phenomenal job with the book. And I think for those who love American horror story and the Barbie movie and want to mix up pop culture and law, which is this podcast encapsulated in a book so perfectly, that's lawless for you.

38:48So just wonderful, deserves a bestseller status that it's attained. let's go I just want to say you know Leah have a little faith like we did coordinate oh yeah I'm sure I'm sure we did I mean I knew Jordan was going to say it look how he's dressed I knew that he's wearing look at what he's wearing I was ready hello that's fair that's fair okay honestly I accept your critiques wait but Jordan you don't you can leave it there you are allowed to have mic drop but you are also welcome to endorse other things if you would like I will say that this book is premier amongst books, but I will give a few others.

39:26Another premier book, actually, I will say, Husband of the Pod, Chris Hayes, The Siren's Call, How Attention Became the World's Most Endangered Resource is a phenomenal book. I think for people who are really into, you know, the anxious generation and generally thinking about how digital media is really changing all sorts of social interaction and personal cognization, it's just a wonderful contribution to that genre. And he does a really great job of actually proposing solutions as well and weaving in the law. So just Chris Hayes, The Sirens Call, does it all. Another friend of the podcast, Bad Law by Ellie Mistal, 10 Laws That Are Ruining America, sort of walks you through things like stand your ground laws, different gun laws in different states that are really contributing to inequality and injustice across the country that I thought was very well done, especially if you like his other book, Allow Me to Retort, Black Man's interpretation of the Constitution.

40:18It's very much a follow on to that. And it's very funny, as Ellie tends to be. A classmate of mine, actually, Yale Law School, Zakir Tammis, just came out with Charles Sumner, Conscience of a Nation. We love that one. Absolutely wonderful contribution. He actually wrote this or started writing it when he was a 3L in law school. I don't know how he made time to do it, but it's a wonderful new look at a forgotten figure of sorts. Everybody remembers Charles Sumner for his caning on the Senate floor. But people don't actually appreciate how much he contributed to the Reconstruction era project. Like why he got Cain.

40:53Yeah, he was actually he was a radical. He was a part of the radical Republicans at the time. And he had deep links to Frederick Douglass and not just Frederick Douglass, but several early black lawyers in the Reconstruction South and was helping to lead the charge of Reconstruction, you know, post antebellum rebuilding. And so just really fascinating look at Charles Sumner from my friend Sakhir. I'll also put out there a new book by Sonia Sotomayor. I think we don't give enough attention to her. We're talking about Anthony Kennedy's new memoir. We're talking about Amy Coney Barrett's new memoir.

41:26But I will say Justice Sotomayor just came out with a children's book. It's called Just Shine, How to Be Yourself, How to Be Great, I think is what it is. And it's really much in this sort of ilk of new children's books that she's put out in the past few years. She had one called just ask, just help. And so this one's called Just Shine, and it's dedicated to her mother. And it's really showing children how to explore differences amongst people, but also lean into themselves and to be brilliant, to be kind, to be empathetic. And I just think it's really wonderful. At a time when you have cases like Mahmoud v.

41:59Taylor that are making it more difficult for children in schools to access books of sorts because of parental opt-outs, it's really sort of telling that one justice is make it easier for children to access books because she's writing them herself. So I just think it's wonderful. I noticed, Jordan, that although you like to do these throwbacks, you haven't thrown back to another strict scrutiny book, The Trump Indy. There it is. We said the last year. I thought it was the last year, Melissa. To be fair. I'm just going to say this book after this year and this court, this is basically fantasy. Right.

42:34This is a fantasy read. It's moved from the nonfiction to the fiction. To fantasy. Correct. Yeah. Correct.

42:42This episode of Strict Scrutiny is sponsored by Cards Against Humanity. Cards Against Humanity. It's not just about party games. Cards Against Humanity is the company that bought land on the U.S.-Mexico border to stop Trump's wall. It sued Elon Musk for$15 million for trespassing on that land. It used profits from red states to fund abortion access. and it paid people to give a damn about the 2024 election. Like I said, not just party games. Did you even know all of that stuff they were doing? Rock on, people. Cards Against Humanity is one of the only companies stupid enough to stand up to President Donald J.

43:20Trump. They don't profit from their political stunts. So if you want them to be able to afford a good lawyer, please consider buying one of their new games. There's Cards Against Humanity Tales, a book of fill-in-the-blank stories for horrible people. Basically, it's like FedSoc Mad Libs. You're going to love it. Or there's Shitlist, a new way to play the game where you write the answers. Basically sounds like a shadow docket order from the Supreme Court. Or you can try Party Mouth, a new party game about shouting obscenities as a coping mechanism for the hellscape that we live in. Basically, that's a strict scrutiny episode.

43:56You listen to Crooked Media, so you probably are smart enough to figure out how to buy Cards Against Humanity stuff, so I'm not going to tell you. In any event, Cards Against Humanity apologizes for interrupting your podcast with this BS. 102 miles ago, the oil light came on. 100 miles ago, you noticed. Now, it's time to head to take five. This oil change, fall in love with your car all over again. In just 10 minutes, your dream technician will check your tire pressure, top off fluids, change your oil, and verify with Carfax exactly what your car really needs. All while keeping you in the driver's seat.

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44:51Maybe super quickly, just some highlights. of last year and goals for the next. I absolutely loved our time at Crooked Con. It was just like a magical, energetic audience. I loved meeting the VIPs at our different live shows this last year. This might be surprising to people. I am not an extrovert, and yet I loved meeting all of you. How both of these things can be true, slightly shocking. Specific live show highlights. Melissa gave me a nickname Sugar Goblin, which I have embraced. Us all getting to eat Giordano's pizza in Chicago and getting to give a shout out to the stage manager's father.

45:24And before the show, Melissa, you learning what just the tip means. Oh, we'll not forget that. The DC crowd cheering for Chevron deference. Judge Breyer making an appearance at our New York City live show. This is a highlight of the last few weeks. So guess what our producer Melody Rowell's number one song on her Spotify raft was. You're never going to guess. So I'm just going to tell you. It's Tate McRae's sports car. And this makes me laugh so hard every time I remember it. She gave me permission to share it. It's okay. Melody, it's fine. I listen to Addison Rae's Fame is a Gun when I stretch.

45:59It's all good. One other highlight, completing the marathon swim about one year after the bike accident. That was a major highlight. Yay. Okay. My highlights, really want to thank the folks at Argent for dressing us for our live shows. Thank you to Sally Christensen and Alex DeCapo Patel for making us look so put together like an amazing rainbow of legal analysis. You were absolutely fantastic. We love that. Another thing I love, but I know Melody hates, is when Cole jingle bombs an episode. And if you don't know what that means, Cole has a little bell on his collar, and sometimes he just walks in and you can hear it, and Melody absolutely hates it, but we all kind of love it a little bit.

46:45I also enjoyed our backstage shenanigans. I'm not going to be shamed for not knowing what just the tip is. That was not a shame. We're all here to learn, and it's fine. I also really enjoyed meeting Jordan's parents and also Kate's parents. Kate's parents showed up in Chicago. And Jordan's parents, I will co-sign, are just unbelievably lovely people who we've now met at a couple of live shows and are just like angels who walk the earth, as far as I can tell. They really are wonderful, Jordan. They are lovely. Thank you all. Okay, I will briefly agree about the live shows. In DC, Leah mentioned cheering for Chevron.

47:24There was also at some point we shouted out the government workers in the crowd and just this roar came up and that was relatively early in this absolute dystopic nightmare that we were living through, but just like so much gratitude to the people who are sticking it out and trying to do the people's work. Some of whom were our students. Yeah. We had some former students. We did. And we also had a member of the DC audience who spilled some remarkable tea afterwards. So I'm still thinking about that as kind of a highlight from the last year. Also highlight the same week of Crooked Con. We had a pretty high impact election, including of New York City mayors, Oran Mamdani, who will be inaugurated just a couple of days after this episode drops.

48:02That feels like an exciting bright spot in an otherwise really, really dark time. My New York City book club has also been a great, bright spot. Lots of recommendations on the WhatsApp in addition to substantive book discussion. I've watched a lot of children's, both middle school and high school basketball in the last year as both of my older kids are really serious ballers these days. And actually it's incredibly fun to watch your kids play increasingly high level basketball, even if travel basketball is kind of the bane of my existence. It's also been incredibly fun. And as awful as this administration, as this court, kind of as the two together are, it has been just an enormous, you know, source of relief and comfort and often amusement and even joy to get to debrief it with you, Leah, and you, Melissa, and more recently, you, Jordan, and with our listeners.

48:50So that too has been a highlight of the last year. Jordan, over to you. Well, the number one highlight for sure of the past year has been starting to work with you all. I started in January, so coming up almost on the one-year anniversary, and it's just been wonderful. I remember every live show. I think I went to every single one this year, starting with Fordham in February and onward, and they've all been fun and unique in their own way. Actually, the only one I did not go to was D.C., much to my chagrin, because I was graduating that week. And so that's another highlight of the year, was I actually finally in this very long JD MBA pathway had a double graduation in May law school first, and then 10 days later, business school.

49:30And now I'm in this sort of weird semester that remains because of the structure of my dual degree. But once I submit my last exam on December 22, I will forever be done with being a student. So it's the end of an era this year, which is, you know, the legal profession needs you. It's very exciting to be, you know, transitioning now to actually being able to use the knowledge and to try to, in some ways, contribute to this crazy universe that we're in right now. Every single week, as you all recap on this podcast, it seems like there's something else that's on fire. And if I could try to use what I've learned over the past few years and continue to learn through this wonderful legal education that is this podcast, it's really an honor to be able to do so.

50:12So my big highlights, working with Strict Scrutiny, finally graduating, getting ready to be impactful. And I'll also say listening to strict scrutiny. So on my Spotify wrapped, it said that I listened to 13 ,070 minutes, which is a little over 217 hours of strict scrutiny. And it put me in the top 0.05%, which I'm hoping that means I'm the number one listener from the past year. And that was a real highlight. I think Sam Alito might have you be the hate listening crowd. He's 0.01%. per set. I'm 0.0. No, he hate lessons. But all of those were highlights. Great. So some New Year's goals. Speaking of Sam Alito, I want to review Sam Alito's book.

51:01I just really want to do that. I think that would be fun. I like writing book reviews. So I want that to happen. I also want to read uncensored versions of Elena Kagan's Descent. So I'm going to repeat that request. If there is a Crooked Con next year, I want it to feel like the same high as this year did, you know, on the heels of the November 2025 elections. I'd also like a Kavanaugh meltdown around that same time, you know, as we had this past year, too. And finally, I want the three of us, Melody, Michael and Jordan, to be in the same places for more extended periods of time. That would be great.

51:40I'm just going to do one which is that I we're talking about Justice's books I want Elena Kagan to write a book but I don't want it to be a memoir and I don't even really want it to be a law book I want Elena Kagan to write fiction I feel like she would slay in that genre fascinating and that's all just put it out there to the universe okay I think I'm going to bring down the vibe a little bit I think my goal for this year is literally just surviving this craptastic administration I think it's just becoming I think especially as a person of color, I think it's becoming harder to imagine that you are insulated from the crap that they're doing.

52:16Like that, you know, looking at all of the people being, you know, swept up on the streets, like that just because you're a citizen, you're going to be exempt from that. You know, now that they're focusing on Somalis, I think black people can't be assured that they are going to be safe and inoculated from all of this. So I'm just saying that if you have friends in your lives who fall into these categories of people who are likely to be targeted or look like people who are likely to be targeted, I just think everyone ought to be aware. Like, it just feels really unsafe. And that lack of safety feels very uncertain.

52:55Sorry. And that lack of safety feels... Aw. It's like, Cole's like, I will protect you. If no one's coming for you, Cole. He's going to protect me. I just think it feels really uncertain. And I think the goal is to survive and to take care of each other and to resist this. Amen. In a similar register for me, just more resistance, more energy and passion around continuing to make our voices heard. I think that the chaos is the point. The exhaustion is the point. They want us to feel demoralized and to feel like there's nothing you can do in the face of what's happening every single day from ice and the like.

53:33But I think that you look at the energy around the No Kings marches that took place this year. That was really exciting. More of that in 2026. More marches. It doesn't have to be No Kings. Think about what it is that we're passionate about and try to galvanize some sort of energy and movement behind it. We need to really try to show that the people are resisting and that there are political, but also on the ground, you know, boots on the ground, voices being heard, consequences to the actions being taken by this administration. So more of that in 2026 and also more institutional resistance. I think that the judiciary, the lower courts in particular, were great bulwarks of constitutionalism over the past year.

54:11And I hope that we continue to see judges like Judge William Young on the District of Massachusetts. Right. He got this this terrible note that said Trump has pardons in tanks. What do you have? And he goes on to write this absolutely fire opinion that says, you know, alone, all I have is my sense of duty. But together, you and I, we have this thing called the Constitution. And here's how that plays out in an opinion. And he wrote this wonderful opinion upholding free speech rights of non-citizens who are being ideologically detained and deported. So I think that continuing to see judges, all the clerks who are working for these judges, continuing to make sure that you uphold the bastion of constitutionalism in our country will be important.

54:50So people on the streets, judges and clerks in the courts, and hopefully we can try to fight our way through 2026. Thank you for landing that as the conscience of the podcast, Jordan. That's a great place to, I think, leave it.

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58:11And now a very warm welcome to our guest for the end of this episode, Ellen Weintraub. We're recording this episode at the end of the week, during which the court handed in a pretty, we thought, appalling performance in both Trump versus Slaughter about the future of independent agencies and also RNC versus Federal Election Commission about campaign finance regulation. And since this is our favorite things episode and independent agencies and regulating money in politics are two of our favorite things, we wanted to bring Ellen into the end of this episode. So, Ellen, welcome back to the show. Thank you so much.

58:43Pleasure to be here. Ellen, you are a former commissioner and I think four-time chair of the Federal Election Commission. That is traditionally an independent agency and obviously regulates money in politics. So you have a lot of skin in both of the cases that the court heard this week. What did you make of those arguments? Well, it was not a particularly uplifting week for me. I sat through, I listened to both of them from start to end. And I think they're really, there's a common theme in the two of them. And it has to do with money. It's all about the power of big money in our government and in our society.

59:21And whether the government is going to take any steps to address that or to try and push back against that, the big power of big industries. You know, I know the Supreme Court is very fond of the founders and sort of obsesses about what they thought. But let's face it, the founders were a bunch of guys in powdered wigs who carried muskets, rode on horseback. It's not surprising that they fail to anticipate the needs of a 21st century economy and the need in particular for a cadre of experts in the government to have any kind of hope of pushback to protect the rights of citizens, consumers, employees against the unregulated power of billion-dollar businesses.

1:00:06I thought it was really interesting. There was a very interesting pair of quotes in the slaughter argument where Justice Sotomayor, she wasn't pulling any punches. She just came right out and said, you're asking us to destroy the structure of government. And Justice Kavanaugh seemed to be very concerned about the notion that these agencies are exercising massive power over billion-dollar industries. Well, yes, that's kind of the point, right? We want to have an effective government so that somebody other than the billion-dollar industries and the billionaires behind the billion-dollar industries has a say and that their interests are represented.

1:00:46Yeah. Well, that was actually a part of the oral argument that I thought was noticeably absent. They were talking in these really abstract terms about democracy, about administrative agencies being unaccountable to the people that somehow Congress is not a democratic institution, but the president is. And no one is really sort of drilling down to the actual reasons why we have a Federal Trade Commission, the fact that it exists to prevent the consolidation of industries, of wealth, of monopoly power. And the very people who lined up to sit behind Donald Trump at his second inauguration are the very same people who stand to benefit from a hobbled or newly reconstituted FTC.

1:01:32And it was like, no one would talk about that. And I think that was also absent from some of the media coverage, honestly. And I think, again, this this lack of awareness of what's really going on out there was echoed in the NRSC opinion where the the justices. I'm sorry, I just don't think they know very much about how campaign finance really works, because you don't have to apologize for saying that on this podcast. We agree. This is not the first time that I have heard them say, well, that's totally speculative. That would never happen. About things that are actually happening. You know, back in the Buckley decision, we had a clear statement from the court that said that individual contribution limits were necessary to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions.

1:02:23And we're pretty close to that system right now because the coordination rules are already just more whole than cheese, if you want to analogize it to Swiss cheese. And that is partially, I have to say, the fault of the FEC, which usually over my objection had a number of decisions over the years that really opened the door to more and more interactions between the donors and the political committees and the candidates. But the notion that all of this money is going to be stockpiled and added up and then funneled back to the candidates, we have seen this exact thing happening as long ago as the 2016 election.

1:03:05And it was both sides, both the Clinton campaign and the Trump campaign had these massive joint fundraising committees where they were collecting contributions in increments of hundreds of thousands of dollars. And, you know, if you wanted to really push it, you could get to a million or perhaps more from individual donors. All of this money is supposedly legal because it went to individual accounts of the individual state committees. But what really happened was that it went into their accounts and then immediately bounced back to the national committee to be used for the benefit of the presidential candidates on both sides.

1:03:41And we had a number of the state party committees who actually got dinged by the FEC. The larger problem was not addressed by the FEC, but they failed to report that they got these contributions and then sent them back to the national committees because they were in their bank account for such a short amount of time, they didn't even know they were there. So the notion that this kind of circumvention is not going to happen, that it's speculative or hypothetical, is completely untethered to reality. Well, that wasn't the only thing I would say this week that was pretty untethered to reality. There just there seemed to be a desire to dwell in the realm of abstraction, I would say, in both of these arguments and either a kind of a bad faith, either failure to or just refusal to kind of acknowledge some of the on the ground dynamics.

1:04:30I think that was absolutely true in both of the cases. So let me ask, if I am not mistaken, Ellen, you, like Rebecca Slaughter, were fired by Donald Trump. And both to the extent that that gives you some special insight into some of the dynamics that we heard about in both of these arguments, but also sort of what unfettered presidential control has meant just in the year that Trump has been back in office and will mean going forward at an agency like the FEC, although feel free to comment more broadly. and also kind of what it might mean to unleash that throughout other pockets of the federal government.

1:05:07Because we really struggle to find a limiting principle that the lawyer arguing against this agency independence was able to identify in the slaughter argument. And I think that is very dangerous. It's going to mean a loss of independence. It's going to mean a loss of independent voices. I mean, let's remember that the FEC is a little bit unusual in that it has an even number from each of the two parties. Most agencies are actually under the control of the president and his party because most of the independent agencies, most of these multi-member boards, which is what we were talking about in the slaughter case, have an odd number and the chair is appointed by the president.

1:05:49So he's got control over these agencies. It's not a question of the president being these agencies acting without any input from the president. But what you're going to lose are any independent voices. And you're also going to lose, if this goes down below the very top echelons of these agencies, you're going to lose expertise. And that's already starting to happen, obviously, across government. Because, A, the president fires people that he doesn't like their opinions. But B, it's going to be much more difficult to recruit good people, to come back into government. Why would somebody want to build a career on providing service to the American people, good public-spirited people that are already working throughout the government or have been working throughout the government?

1:06:35How do you get those people to have the incentive to come back to government if they know that they're going to have no job security and anytime they voice an opinion that's contrary to the president, they could just get fired? And the firing of people like me who did speak out, I think, was intended and received as a message of intimidation to other heads of agencies and to other government employees. So I think all of that is going to be to the detriment of the American people. Ellen, you mentioned these people that the president is firing in violation of these terms that Congress has set that now maybe the Supreme Court will make permissible going forward.

1:07:17How did you experience the process of being fired by the president from your post at the FEC? Some people have said that they got an email from someone. Others have said that they were supposed to get an email, but the person sending the email typed their name wrong, so they never got the email. They found out from a co-worker who was CC'd. I mean, it just sounds like they're really doing this government thing at a really high level, like A-plus work here. Can you tell us your Trump firing story? Yeah, I got an email. I actually was not in the office. It was late on a Thursday afternoon, and I was out of the office, so I was not staring at my email.

1:08:03It was a two-sentence letter. You're removed, effective immediately. Thank you for your service. They did say thank you. You did get a thank you. Not everyone did. I did get a thank you. Yeah. I was called, but A, the letter was dated a week earlier, so I don't know where it was during that week, but it was dated January 31st. I didn't get it until February 6th. And then it was copied to both the staff director and the general counsel of the agency. And I think, as I've said before, I think that was intended and received as a message. Like, we are watching you, too. So this person is the first to go.

1:08:42And if you don't make sure that she's out of the building, then, you know, other people could follow. And I was subsequently cut off from my email. I was removed from all – I couldn't get access to the databases. They decommissioned the chip in my ID that allowed me access to the building. You know, I was given a little bit of time to clear out my office, which, you know, was nice, I guess. But it was – I was not surprised to be removed by the president, but I thought that what would happen would be that I would be replaced in the normal course, as would have been consistent with the law. But that is not, in fact, what happened.

1:09:26And by the way, another ramification of all of these firings is that it's a death by decapitation of various agencies, including the FEC. The FEC is supposed to have six commissioners, four is a quorum, and now it's down to two. All of the Republican commissioners left this year, one to join the administration, one to go into private practice, one to run for Congress. And then I was fired. So they don't have a quorum and there are no nominations pending. So this is another way that the president fails in his constitutional duty to take care that the laws be faithfully executed. That's the sentence that the originalists don't quote quite so often, also from the Constitution.

1:10:12But Congress set up this agency. They set it up in particular as a bipartisan body. And if the president can just fire people willy-nilly so that there is no functional quorum, the agency can't enforce the law. It can't interpret the law. It can't do anything that it's any of its major important jobs. And the FEC is not the only commission that's been effectively decommissioned. You know, the NLRB, I think, is in the same situation. There are probably others. I think the CPSC maybe lacks a quorum too. But Ellen, this is so interesting. I mean, the point about dismantling by decapitation. So Ramon Martinez in the argument said that this case was basically moot because the administration wasn't going to enforce it.

1:10:58He might have actually been exactly right, but for a different reason. Like they're not going to enforce it because there's not going to be an FEC. Yeah, I think, or he's doubly, he's right for even more reasons that he was identifying. But it did, when you were talking, Ellen, it made me think that, you know, their effort to completely sort of slash and burn federal government under the leadership of Elon Musk and Doge was actually pretty unpopular in certain respects. But I wonder whether this reflects a kind of effort to in more, you know, kind of genteel looking ways, like to just exercise the president's rightful article to power, but essentially get to the same place, which is agencies that can do none of the work that Congress empowered them to do and that the people often really need to go back to the first thing you said to do things like protect consumers, prevent corporate consolidation, protect laborers and so much more.

1:11:50So before we go, Ellen, as you know, this is our favorite things episode. And as we've already said, agency independence and campaign finance regulation are among our favorite things and dismantling them is one of our least favorite things. So we've covered some of that ground. We now want to invite you to share with our listeners some of your favorite things. Well, I'm sorry that Leah's not here because I actually have some recommendations for her because like her, I like a good mystery. Oh, good. She'll listen. Don't worry. So for Leah, some of the series that I've been listening to or reading that have given me a little bit of joy this year are the Veronica Speedwell series from Deanna Rayburn, which is just very diverting, shall we say.

1:12:36An Australian series by an author named Benjamin Stevenson that starts off with a book called Everyone in My Family Has Killed Someone. And it is quite sane. It's a good title. So it's funny. It's, as I said, diverting. I'm reading the latest Louise Penny, The Black Wolf. She's always wonderful. And then on a more serious note, I listened to the audio version of Judi Dench's memoir, Shakespeare, The Man Who Pays the Rent, which I found, you know, just wonderful and lovely for Shakespeare lovers out there. This is Happiness by Neil Williams, set in a little Irish town, very transporting. Anything by Amor Tolles and Elizabeth Strout, I would recommend.

1:13:21And I also recommend getting out into the fresh air. I did some travel this year, saw animals, went on a safari with my daughter, and that was really special. Does Judi Dench read her own memoir? Actually, she doesn't because her eyesight isn't very good anymore. I see. But they found an actress who sounds like her to read it. So you feel like it's her reading it. There are some excerpts. There are a few little sections of her reading things. But the rest of it is an actress who sounds like Judi Dench reading Judi Dench's memoir. It's still good. It's fun to listen to. There's a dupe for everything.

1:13:56All right. Well, Ellen Weintraub, thank you so much. It's always great to spend some time with you. Happy holidays. Stay strong. Be well. Thank you. Before we take off, let's do a little housekeeping. guess what, West Coast Stricties? We are headed your way. That's right. Strict Scrutiny is headed to the best coast, and we hope that you will be there to catch us. We are going to be in San Francisco on March 6th at the Herbst Theater. You can catch us there, and you can just take Southwest or drive all the way down the 5 to LA and catch us the next night, March 7th, in Los Angeles at the Palace Theater.

1:14:32Both nights are going to be absolutely fantastic. We are going to do what we always do, which is to say, we are going to get you up to speed on this court. There may be a little bit of dragging. Who is to say? We have games. We almost always do games at live shows. They're often pretty epic. Always games, like games. We're going to be impeccably dressed. Well, Melissa will be. Leah too. I'm not. Well, I mean, I think Argent's going to be dressing us. And if Argent won't dress us, we're going to wear our pajamas because we're getting on planes. And we want Sean Duffy to know that he can't tell us what to do.

1:15:03So there you are. We might just do the whole show in our pajamas just because we're not dressing up because you say so, Secretary Lumberjack. Anyway. And if you want to know what outfits we're really going to be wearing on the stage, you're going to have to buy tickets. Show up to see. You've got to be there. Show up. Bob, we've been recording for such a long time. I literally like, is he a senator? Is he a secretary? Secretary. I like it. I just kicked my ring light. Oh, God. Okay. Somebody got our cord. Land the plane. Land the plane. So we're going to be landing this plane in San Francisco.

1:15:36Then we're getting on another plane and headed to LA. And we're going to catch you there. So grab your tickets now at cricket.com forward slash events. You can get them right now. They make amazing holiday gifts. You know, there's someone in your life who's like, you know what I need for the holidays? I need to drag this court. Get that person some tickets for March 6th in San Francisco or March 7th in LA. You know what to do. Make it happen.

1:16:03Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Littman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. Jordan Thomas is our intern. Audio support from Kyle Seglin and Charlotte Landis. Music by Eddie Cooper. Production support from Katie Long and Adrian Hill. Matt DeGroat is our head of production. And thanks to our digital team, Ben Hethcote, Joe Matoski, and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. subscribe to Strict Scrutiny on YouTube to catch full episodes find us at youtube.com slash at Strict Scrutiny podcast if you haven't already be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode and if you want to help other people find the show please rate and review us it really helps

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