SCOTUS Keeps Rewriting Gun History

27:22All to say that Justice Alito seems to be someone who doesn't mind taking account of laws tainted by racism when the ultimate goal is to rescind a woman's right to choose an abortion. No, but Melissa, he already told us racism, it's xenophobia, not racism. That's right. It is just fine. Well, and also, I vaguely recall something in Dobbs about him saying, well, we, the court, don't like to question legislature's motives and ignore laws based on conclusions that the legislature's motives were improper, both and and... Brnovich, too. Yeah, he's definitely, yeah, yeah. So on and so forth. Speaking of Louisiana versus Calais, despite Sam Alito being very triggered by considering the relevance of racist laws to constitutional analysis in Wolford.

28:14I will remind him that he wrote the decision in Louisiana versus Calais, nullifying Section 2 of the Voting Rights Act, the law that literally made the country a multiracial democracy, such that any laws passed before the Voting Rights Act, particularly in the South, would be products of Jim Crow segregation. So should we be ignoring all of them? I just am so curious. How do I do the history, sir? Please tell me. Exactly. This is just like drunk history is the way he is doing it, drunk and opportunistic history. And, you know, we've sort of belabored this, but maybe just another example is that the conservative supermajority brushes away, in addition to the other kinds of evidence that Hawaii marshals, evidence from before Hawaii actually became a state that limited the carrying of deadly weapons.

29:04Now, I don't know that it's clear on Bruins' own terms like what the actual weight of that evidence should be, but it is definitely meaningful and problematic that Alito doesn't really engage with how to weigh a state's pre-statehood legal history, instead insisting in what felt to me like a pretty dismissive and even contemptuous kind of way, this idea that the spirit of aloha could somehow justify gun regulations. He says the spirit of aloha cannot shrink the rights guaranteed by the Second Amendment. Thinking about making a t-shirt, I am the spirit of Aloha. Spirit of Aloha this, Sam Alito.

29:38Would wear, yeah. Unsurprisingly, Justice Jackson sharpened her pen in dissent to once again take aim at Bruin and how stupid and misguided the tests and maybe even her colleagues are. She also had this to say, quote, With this decision, the court has now manipulated Bruin into a free-for-all that lets the judiciary thwart the will of legislatures by privileging access to firearms above all else. Today's decision makes one thing clear. The court's objective is protecting guns, not consistently preserving any principle of law. Shorter, KBJ. This dumbass test is just another vehicle for my awful colleagues to continue aggrandizing power to themselves and the National Rifle Association.

30:19KBJ, out. And I think she was pointedly on to something, which is the court is just all over the map on how Bruin works. And Wolford seems to gerrymander the test in ways that are designed to strike down gun control regulation and just view gun control regulation as just not a legitimate part of governance. So, for example, in Bruin, the court had suggested in order to show a historical analog, you really need to focus on enacted laws. Rahimi said, no, that's not the test. Now, Wolford comes back and actually says, well, the best evidence of historical tradition is enacted historical analogs. It also defines the arms that are protected under the Second Amendment somewhat more capaciously than some lower courts have.

31:03It's just all over the place. Yeah. I just want to say briefly like a word or two about Justice Barrett's concurrence, which did feel to me like her gloves have kind of come off. I'm thinking particularly of her accusation. The gloves were always velvet. Well, there are no gloves at all at this point. But basically, it's not the majority on Barrett's account that like smuggles things into the Bruin test, as we have just been suggesting. But actually, it's like Hawaii and Justice Jackson in dissent. So she like three, I think, or maybe four times like calls out the principal dissent, which is Jackson's dissent by name, accuses the Jackson dissent of erroneously claiming that Bruin leaves judges free to insert any meaning they desire into the text of the Second Amendment.

31:44And she basically says, no, that's not true. basically you're asking us, you dissent in Hawaii, to smuggle additional limits drawn from our regulatory tradition into the plaintext stage of the inquiry. So they're sort of fighting about both stage one and stage two of the Bruin test such as they are, which I don't even really understand at this point. But one other Barrett point, she draws an analogy to a law that set the default that religious garb could not be worn on private property without the express consent of the owner. And she's like, aha, you wouldn't like that. And so you shouldn't like this default.

32:16And I do think that the kind of the troll equality to that example suggests that she is learning from her woke warrior colleagues. And I just – all I can say in response, not that it matters to these ghouls, is that in any sane world, the fact that hijabs are not instruments of injury and death would make a difference in assessing a state's regulatory interest in those two things. But alas, that is not Amy Coney Barrett's world and it is not ours. So I thought her concurrence was super interesting for all of the reasons you suggest, Kate, but also because she seems to be contesting the grounds of the debate.

32:49So one of the things that Justice Jackson did was to call out the majority for a decision that is not just inconsistent with a history of firearm regulation, but a history in which conservatives and the law have always prioritized private property rights. And Barrett seems to be suggesting that this case isn't about private property rights at all. It is first and foremost about gun rights, and therefore there is no inconsistency or lack of principle. And as she explains, everyone knows that private property owners have the right to exclude people and guns from their property. But in this case, she writes, quote, the Second Amendment doesn't apply to private parties.

33:27It does apply to the states. And when a state enacts a property law that regulates arms-bearing conduct, that law implicates the Second Amendment. So basically she's saying if you're going to plausibly limit gun possession on private property, the prohibition cannot come from a state enacted law. It has to be an individual prohibition from each private property owner, which is obviously untenable as a policy matter for gun safety. But this seems to be the future of Second Amendment jurisprudence. Anything that the government does to regulate guns is going to be presumptively unconstitutional. Everything would have to happen through private ordering.

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37:04Now for the other decisions. So one decision from last Tuesday, was Blanche versus Lau. So this case concerns legal protections for lawful permanent residents. And in the hierarchy of immigrants, lawful permanent residents, green card holders are supposed to have the most rights, including the right to leave the country and return to the country. Federal immigration law carefully restricts when lawful permanent residents are not allowed to return to the United States with their immigration status. It allows immigration officials to refuse to allow a lawful permanent resident to return to the United States, that is to be denied admission to the United States with their legal status as a lawful permanent resident if there is clear and convincing evidence that the lawful permanent resident committed a crime of moral turpitude.

37:52And in this case, the Supreme Court said, fuck laws and decided that immigration officers can refuse to admit green card holders even if the government doesn't have clear and convincing evidence that the green card holder committed a crime of moral turpitude, which kind of takes the whole, I don't know, lawful, permanent, and resident elements out of lawful permanent resident. The court made federal immigration law more of a suggestion than a rule. And I vaguely recall how this court really hates it when previous courts had quote unquote made laws rather than interpreting them and how they railed about how only Congress can change the meaning of statutes and their terms.

38:30Hmm. Yeah. All right. Let's turn to Pung versus Isabella County. This case involved the problem of tax foreclosures. Side note for you listeners, later this summer, we have on deck for you a terrific conversation with the University of Southern California's Professor Bernadette Etuaheni about her recent book, Plundered, which considers tax foreclosures in Detroit and is very much on point with this case. So please stay tuned for that. In any event, in most tax foreclosures, homes are often sold below their fair market value in order to satisfy existing tax liens on the property. and in this case, the plaintiff's home was foreclosed and auctioned to recover about$2 ,200 in unpaid property taxes.

39:11The wrinkle, though, was that the home was assessed at$194 ,000, but sold at auction for just$76 ,000. The owner, Peng, received the difference between the sale price and the amount of taxes, but he sued, claiming that the state also owed him the difference between the assessed value and the sale price. Specifically, he argued that the failure to pay the difference amounted to an unconstitutional taking and a violation of the Eighth Amendment's prohibition on excessive fines. Predictably, in a 6-3 opinion authored by, who else, Justice Alito, the court foreclosed on Peng's argument by doing some history and tradition interleavened with some personal responsibility mogging.

39:50Basically, the foreclosure method Justice Alito held is consistent with the history and tradition of foreclosing on homes, And Peng should have refinanced and paid his property taxes like a responsible homeowner would. As for the Eighth Amendment's excessive fines claim, well, history and tradition rules that out, too. On to Lander v. Louisiana Department of Corrections, and this is a big one. So you know how the Roberts Court has a huge Jones for religion and religious practice? Sure do. Weirdly, you think you do, and yet that was not on display, strangely, in this religious liberty case. leaving the strong impression that said Jones is only for white Christians.

40:29And religions that they recognize. Yeah, that's fair. So maybe we learned that. And we may also have learned that this Jones in general plays, or maybe just in a case like this, plays second fiddle to the right-wing project of clipping Congress's wings and attacking public benefits programs and the social safety net. Lander involves a Rastafarian prisoner whose dreadlocks were cut off by prison officials in violation of his religious convictions and religious practices. It's worth noting that when he was transferred from one facility to another, he was afraid that he would have his locks cut. So he provided prison officials with a printed document that explained that they could not cut his hair because free exercise.

41:10And what did they do? They threw that printed judicial opinion in the garbage and held him down and forcibly cut his hair, shaved his head. Because, Kate, who cares about free exercise unless you're a trad wife or a trad dad? Right. Doesn't matter for you. Clearly. That's right. To be clear, this case, despite the religious overtones, is not a straight up free exercise claim. Instead, the prisoner, Landor, sued the prison officials for damages under the Religious Land Use and Institutionalized Persons Act, or also known as RELUPA. RELUPA was enacted to ensure that prisons and other state institutions protected the religious practices of those who are in their charge.

41:48and the statute was enacted under Congress's authority under the spending clause, and its terms apply to any local prison that accepts federal funding. Those terms from the statute require state prisons to protect inmates' religious liberty and explicitly permits prisoners to sue for quote-unquote appropriate relief when their rights under RALUPA have been violated. Yet, despite these very clear provisions, the prison officials that Mr. Landor sued argued that they could not be sued in their individual capacities under RLUPA. And the Supreme Court agreed. Again, because laws, at least spending clause laws, those aren't real.

42:27They're just guidelines, not actual laws. They're more law-ish. So in a decision authored by Neil Mildgummy Gorsuch, a 6-3 majority held that RLUPA itself is basically a mild gummy and does not authorize lawsuits seeking damages from prison officials in their individual capacity. The court bifurcated the idea of obligations on one hand from liability on the other and said, well, the spending clause can impose an obligation but no liability unless they specifically consent. So Justice Gorsuch explained pedantically, quote, Congress's power to spend money does not include the power to regulate. Spending clause statutes can bind only those who voluntarily and knowingly undertake obligations by agreement with the federal government.

43:09Here, the individual prison officials didn't agree to be bound by Arlupa's terms, so they can't be sued for violating them. Even though the court maintained they are still subject to and bound by them, it's just... So Justice Jackson issued a vigorous dissent here, and the dissent basically boiled down to this. This is entirely batshit crazy and effectively renders all spending clause statutes as unenforceable against individual officers who are charged with carrying out the terms of the statute. And that is to say, that's a lot of statutes. In the last 30 years, as this court has foreclosed Congress's authority to pass legislation under the Commerce Clause and Section 5 of the 14th Amendment, really narrowing those heads of congressional authority, it is the spending clause that's merged as a crucial means by which Congress can continue to enact legislation, or at least could continue to enact legislation.

44:03This is not to say that Congress can't do that under the spending clause, but now it seems like whatever they do under the spending clause is really more legislation-ish, a suggestion, not necessarily binding law. And I'm not even totally sure. So back to the immigration cases for a moment, like with the TPS case, I mean, an administration, you know, willing to completely defy the law is going to be hard for Congress to respond to. But Congress could legislate and explicitly extend protections to individuals who are current TPS recipients. And I mean, there are legislative responses that are possible.

44:37It's not even totally clear to me, like, what Congress is supposed to do here if it's acting under the spending clause that would have produced a different result. I mean, maybe creates a mechanism by which like individual state and local prison officials like consent to the terms of like federal monies. But I honestly don't even know how that would work. And it just – the kind of breadth of this opinion and also like its foreclosing of kind of democratic avenues for response is like really pretty stunning. Okay. On that note, on to the next case, ExxonMobilCorp versus Corporacion CMEX. Let me give a little bit of background before delving into what's at issue in this case.

45:16So after the Cuban Revolution, Castro's government seized a lot of property, including property owned by American businesses. Then in the mid-1990s, to afford what this statute called victims of, quote, Castro's wrongful seizures, a, quote, judicial remedy in the courts of the United States, Congress passed a law, the Helms-Burton Act, which created a private right of action for U.S. nationals, including U.S. corporations, whose property had been unlawfully confiscated by the Cuban government. Well, you might be thinking, in light of the conversation we just wrapped, didn't Arlupa also create a private right of action for prisoners whose religious liberty was violated?

45:49Well, you'd be right. But one critical difference, I mean, there are others, but this is one important one, is that prisoners aren't oil companies. When the party seeking to enforce a right is a wealthy U.S. corporation, the analysis and the outcome is, of course, different. Anyway, said wealthy corporation Exxon brought this suit against CMEX, a company that is controlled in part by the Cuban government. Again, this case is kind of a right-wing fever dream in some ways. It involves oil, corporations, and a communist country that America is determined to starve into supplication. But notably, it wasn't all smooth sailing for Exxon in enforcing its judicial remedy against CMEX for expropriating its property.

46:29Exxon did have to get over the hurdle of what is known as foreign sovereign immunity, which means that foreign sovereigns, like Cuba, are presumptively immune from suits in United States courts. The principle of foreign sovereign immunity is codified in the Foreign Sovereign Immunity Act, which says that foreign sovereigns can't be sued in the United States courts unless one of the act's statutory exceptions is satisfied. Accordingly, the question for the court here is whether the Helms-Burton Act abrogates foreign sovereign immunity or whether plaintiffs like Exxon satisfy one of those statutory exceptions in the Foreign Sovereign Immunities Act that allows it to abrogate foreign sovereign immunity.

47:09Here in a 6-3 opinion authored by Coach Kavanaugh, the court held that the Helms-Burton Act abrogates the Cuban government's sovereign immunity, meaning that plaintiffs who rely on the Helms-Burton Act to sue the Cuban government or its instrumentalities are not required to satisfy an exception to the Foreign Sovereign Immunities Act. As Coach Kavanaugh wrote, quote, stacking an FSIA requirement on top of the Helms-Burton Act would thwart Congress's design and directly contravene the president's foreign policy judgments. End quote. Sounds like textualism to me. A few things to note about this decision.

47:42First, for a self-identified textualist, Brett Kavanaugh had to engage in some pretty tortured statutory interpretation to arrive at this outcome because, inconveniently, the Helms-Burton Act doesn't say that it abrogates sovereign immunity. Obviously, the lack of an explicit text, abrogating Cuba's sovereign immunity was not going to pose an obstacle to this court having a good time. So TLDR, Exxon wins, Cuba loses, it's 6-3. This is a ruling that will likely accrue to the benefit of Marco Rubio and any oil companies who want to sue Cuba for appropriating and expropriating their oil. It seems that foreign sovereign immunity, like stare decisis, is also for suckers.

48:23I just want to chime in here to say that I think this decision benefits more than just Exxon and Marco Rubio. And I think Coach K tips his hand a bit when he says that requiring compliance with the FSIA would, quote, directly contravene the president's foreign policy judgments. It seems to me that Coach Kavanaugh is trying hard to make Curtis Wright happen again. And Curtis Wright versus the United States is a 1936 decision written by Justice George Sutherland that is widely credited with advancing the view that the president enjoys wide, even plenary authority in the conduct of foreign affairs.

48:57And although the decision hasn't been entirely discredited, many commentators have rightly noted that it is somehow a historical in its account of how the president came to be the primary mover in the field of foreign affairs, and that it substantially discounts Congress's own congressional power in the arena of foreign affairs. And can we say Chief Justice Roberts, in his Zivotofsky opinion, basically says that. So it's not even just like, once upon a time, Roberts kind of agreed that Curtis Wright should not be overread in exactly the way it sounds. You're suggesting Kavanaugh seems eager to do.

49:28Sorry to jump in, Melissa. No, no, no. That's exactly right. I think, though, you should read this Exxon opinion in tandem with Kavanaugh's 63-page dissent in the tariffs case, where he seems to be aggrandizing the president's authority in foreign affairs, policymaking, and shrinking the judiciary's ability to review and check that authority. So it's not even that Curtis Wright limits the authority that Congress might have. Now Kavanaugh is also trying to limit the authority that the courts might have to check the president in this area. And he's basically advocating for the executive to be a monarch in foreign affairs at a time when I think it's increasingly difficult to draw the boundary between what is domestic and what is foreign affairs.

50:11And the tariffs case are a perfect example of that. The majority in the tariffs case treat the question of the tariffs as though they are a domestic affairs question and they apply the major questions doctrine. But Kavanaugh in dissent talks about this as a foreign policy kind of question. And I think they're both, right? It is a foreign policy question that obviously has domestic implications and a domestic question that has foreign policy implications because we live in an increasingly globalized economy and society where foreign affairs and domestic affairs are often inextricably intertwined.

50:46And I just think this is a really dangerous take and he's making it happen. Totally. We also got the decision in Cisco Systems versus Do, which considered corporate liability for human rights abuses. Here, the plaintiffs, Falun Gong practitioners, allege that the Chinese government persecuted them for their religious beliefs and that Cisco enabled the persecution by developing surveillance technology that the Chinese government used to identify and apprehend them. At issue was whether the plaintiffs could bring lawsuits against Cisco to hold the company liable under the alien tort statute. There is also a secondary question as to whether two of Cisco's executives could be liable under the Torture Victim Protection Act.

51:28And the court held, again 6-3, that courts may not create new causes of action, that is authorization to file suit, for violations of international norms under the alien tort statute. The court reasoned that Congress, rather than courts, is in the best position to weigh the implications and policy trade-offs of creating liability under the statute. The TLDR is that this court won't allow plaintiffs to sue for human rights abuses that, in recent years, have come to be understood as violations of international law. The ATS, like spending clause statutes and some parts of federal immigration law, is evidently more of a vibe than hard law.

52:02And we should say this was not the first time the court considered this issue of private causes of action under these statutes, and specifically the ATS. For years, then Chief Justice Rehnquist and Justices Thomas and Scalia had a bee in their collective bonnet about this question. So they had a lot of kind of righteous indignation over court-created causes of action, but one thing they did not have was a majority. So back in 2004, in a case called Sosa, a majority of the court actually held that courts could recognize international law violations under the ATS. But when you have six, they let you do what you want, no matter what five justices said previously.

52:38So stare decisis, respect for precedent, and international human rights. The list is long, all for suckers. So Kate and I did a same-day rapid reaction video on YouTube when Lau, Landor, Cisco, and Exxon came down. Not going to repeat everything here, including the profanities I directed at Neil Gorsuch over Landor, but you can check it out if you'd like. Did, however, want to underscore or just highlight a few themes that emerge from that set of cases in particular. One is that it's pretty good to be a corporation. We are in the regilded age. Think about the combined effect of these decisions.

53:15Corporations can sue foreign governments or at least Cuba and Cuban government entities for expropriation of oil, but corporations can't be sued for assisting foreign governments in human rights abuses. Beneficiaries of public benefits programs and victims of human rights abuses can't sue because some statutes don't say explicitly they have a cause of action. But corporations can sue a foreign government, Cuba, under a statute that says nothing about foreign sovereign immunity, kind of like how Trump can't be sued but can sue media companies, pollsters, and his own IRS. This is, as always, known as the rule of law.

53:51And these decisions also render legal protections for the less powerful, unenforceable, basically parchment promises for victims of human rights abuses, lawful permanent residents, and the incarcerated. These cases are also an attack on the government's capacity just to do government and specifically Congress's ability to legislate. When Congress exercises its spending power and allocates funds to government entities, it often makes receipt of those funds contingent on compliance with other laws or certain laws or other conditions. And now the court is saying that those conditions on spending can only be enforced against individual state officers if they first consented to be bound by those conditions.

54:31Spoiler alert, who would do that? In a similar vein, when Congress enact statutes like those creating protections for particular groups like lawful permanent residents, the court is basically stepping in and saying that those protections aren't binding when they're being executed at the border. It's kind of a big giant fuck you to Congress and its ability to create protections for certain groups. And, you know, side note question. Wasn't there a book, Leah, that you recommended that argued that all of the court's BS was really just a secret plot to empower Congress to step up? I didn't read it because I don't read science fiction.

55:08I recommended, or was it an op-ed that maybe is kind of recited in some form in a book? Maybe both and, but I'm just waiting for that, I don't know, punchline or moment when the court finally reveals itself. And does that, oh yeah, Congress gets to be empowered final act? That'll probably be this week, Leah. I'm almost sure it's going to happen today or tomorrow. I think it's, yeah, it's coming. It's coming. Cannot wait. I can feel it. The apotheosis of Congress is imminent, the rapture. Yes. Okay, so bottom line from that group of cases, this is a 6-3 court. It will decide in its infinite wisdom, benevolence, discretion.

55:56When it wants to be a full-blown 6-3 right-wing ideologically captured court, occasionally we'll deviate from that. But apparently, the justices decided to lean fully into it on Tuesday, June 23rd, when that group of opinions was released, and I think doubled down in many ways on Thursday the 25th. But across last week, they really seemed to want to fulfill some long-running goals of the right-wing legal movement, and they did. Basically, all the Republican appointees got on board with Justice Thomas' I would go further mantra, and some kind of real right-wing legal movement maxing of the law occurred.

56:32We got one other opinion in an argued case. The case was called Monsanto v. Jarrell. It was an unusual case in which the court displayed real empathy for the Environmental Protection Agency, but only because doing so allowed the court to rule for a huge corporation, one for which Justice Thomas worked from 1977 to 1979, while also sticking it to cancer victims. Not Justice Thomas, but the court. In any event, the case concerned a federal law, FIFRA, the Federal Insecticide, Fungicide, and Rotenticide Act, I love saying that, which authorizes the EPA to regulate the sale, use, distribution, and labeling of pesticides.

57:11The statute contains a uniformity requirement that prohibits states from imposing any requirement for product labeling that differs from the requirements that are imposed by the federal government. For decades, there has been debate and litigation over the safety of glyphosate, a very popular herbicide that is the main active ingredient in Monsanto's Roundup weed killer. Concerns about safety accelerated in 2015 when an arm of the World Health Organization issued a report classifying the herbicide as probably carcinogenic to humans. The report led to tens of thousands of lawsuits at the state level against Monsanto over the labeling of Roundup products, and specifically the company's failure to warn about the potential harm.

57:48Monsanto argues that FIFRA, this federal law, preempts state-level failure to warn claims. It also argues that if these lawsuits are not preempted by FIFRA, the future of the domestic agricultural industry is imperiled. So the justices, who are obviously great friends of the American farmer, or more accurately, of big ag, took this case and on Thursday issued a 7-2 opinion authored by Coach Kavanaugh, holding that FIFRA expressly preempts these state-level failure-to -warn claims. And people who argue that they have had or have cancer because of their exposure to Roundup products and Monsanto's failure to warn of potential harms cannot sue in state court.

58:27As Coach Kavanaugh explains in this opinion, the EPA undertakes an extensive review of pesticides and the proposed labeling and determines whether the proposed label includes all of the warnings necessary and adequate to protect human health and the environment. Once the pesticide is registered, the company is required to use the approved label until it receives EPA approval for a labeling change or the EPA orders a change to the label. And since the EPA here has consistently studied glyphosate and has not determined it to be a cancer risk and has not required Monsanto to change its label, Monsanto is therefore under no obligation to provide additional warnings.

59:06And any state-level claims regarding failure to warn are expressly preempted by the statute because they would effectively violate the statute's uniformity requirement. Now, it wouldn't be an episode of Strict Scrutiny if we didn't feature our Evergreen segment. We need to talk about Justice Thomas. In our live show in New York, we mentioned that I mentioned that Justice Thomas might be jonesing for a Commerce Clause freak off because he's been going through a dry spell. Seems he really has a hankering for some Commerce Clause kink because in a concurrence in Monsanto, which per usual, no one joined, Justice Thomas identified what he called FIFRA's, quote, underlying constitutional infirmities.

59:48Chief among them was that FIFRA, quote, likely exceeds Congress's authority under the Commerce Clause. Because why? Agriculture and manufacturing are entirely separate from commerce. I just want to note here that this is exactly the kind of formalistic reasoning and argument that the Gilded Age Court used to invalidate parts of the Sherman Act and other economic regulations that were enacted under the Commerce Clause in the late 19th and early 20th century. Literally, there are no new ideas at all. Just make Lochner Court jurisprudence great again, like entirely. He is fully in order with that project.

1:00:27Yes. So it actually also, though, seems as though Justice Thomas may not just be down for Commerce Clause kink, but also non-delegation doctrine kink. Because he argues that FIFRA also, quote, raises questions about Congress's ability to delegate core legislative power to the EPA. Once again, make Lochner era jurisprudence great again. He is very concerned that FIFRA and the modern administrative state presents important separation of powers questions, which is to say, all in good time, young Jedis. We will get to all of this and bring down this whole government thing in the process. But then finally reveal that we are empowering Congress.

1:01:08I mean, genuine question. Why didn't Neil Gorsuch join parts of this opinion? Like this is part of his villain origin story. I think you can't protect big ag without something of a shell of an EPA that has some delegated authority. So you may want to be able to keep it around just for these moments. Thomas, to his credit, has the courage of his convictions. He's like, all right, I will be okay to throw Monsanto to the wolves. And I just don't know if they all are. Well, is he actually throwing Monsanto to the wolves? Congress can't do any of this stuff. Yeah, but if Congress can't pass this law that preempts these state-level claims, then yeah, I mean, I think that the tort liability— He's torn.

1:01:47I think he's torn. Yeah. Yeah, they're cross-pressured. But for him, I do think the kind of deconstructing all of it is the major preference that he's willing to subordinate all minor preferences to. You know who I think really loved this decision? Soybean farmer Scott Bessent. This one's for him. All right. Finally, the court also issued a procurium opinion in a case that was not argued. This was McCarthy versus Hernandez. This was a GVR grant, vacate, and remand in a case that involved the individual who'd been convicted of the murder of six-year-old Etan Patz, who disappeared on his way to school in New York City in 1979.

1:02:27Many years later, Hernandez confessed to the murder, but only after hours of police interrogation without a Miranda warning. He was ultimately convicted by a jury, but the Second Circuit later granted his habeas petition on the ground the jury had been incorrectly instructed about the confession and the court ordered a new trial. The Supreme Court here said that the Second Circuit was wrong, since they think habeas should basically never be granted, and they reinstated the conviction. Strict Scrutiny is brought to you by Slow Burn. Slow Burn, the award-winning narrative series from Slate, is back with a new season, and it feels like one that was literally manifested by the ladies of Strict Scrutiny, becoming Justice Gorsuch.

1:03:12That's right. In this season, host and Slate executive producer Susan Matthews traces Neil Gorsuch's formative years from his mother's rocky tenure in the Reagan administration to his coming of age as a young conservative in the 1980s. She'll lead you through his legal philosophies and his controversial nomination to a stolen seat on the high court. And she'll shed light on a man who many Americans can't even identify in a lineup, but who has nonetheless played a major role in ending affirmative action, limiting abortion access, and upending voting rights. Featured in this season are Friends of Our podcast, Dahlia Lithwick and Mark Joseph Stern, the host of Amicus, Slate's podcast about the courts.

1:03:53They break down how Gorsuch fits into the current court, where he's going next, and why he never took his job on the court's cafeteria committee very seriously. As you all know, the Supreme Court's end of term is upon us, and this is the perfect podcast to learn why Justice Gorsuch is such an unpredictable vote, and to round out your understanding of this Supreme Court. Listen to the entire season of Slow Burn, becoming Justice Gorsuch now on Apple Podcasts, Spotify, or your favorite podcast app.

1:04:59All right, we are going to briefly take through some legal news before we go. And the first one involves voting rolls. OK, so listeners, as we've discussed, the president is on one about the upcoming midterm elections. It is almost like he's worried that his party might lose control of Congress and he might be impeached again. There might be oversight. Who knows? All of this may explain why he seems determined to fuck around with the upcoming elections. There is obviously the spate of mid-cycle redistricting that he requested and largely received thanks to Texas and the Supreme Court. But the administration is not done there because they've also been demanding that states turn over voter rolls to the federal government so that the feds ostensibly can compile some kind of nationwide voter registration database to ensure the integrity of future elections.

1:05:46Obviously, that is just the claim. We are not suggesting that is the true motivation. And we also can't help but wonder whether anyone has told them that the Constitution commits election administration to the states. So those requests were made, and the federal government has now sued around 30 states to compel them to turn over voter rolls, which often contain sensitive voter information. And last week, a Trump-appointed federal judge in Maryland dismissed a DOJ lawsuit against Maryland seeking access to that state's voter records. In that opinion, the court wrote that its decision accords with, quote, every court to have addressed this issue in concluding that the unredacted voter registration filed is, quote, not a record or paper that the state must produce to the United States.

1:06:30Just to be clear, that district court dismissal brings the DOJ to a zero to nine record in lawsuits in which they have tried to compel the states to turn over this kind of data, which includes dates of birth, addresses, driver's licenses numbers, and partial social security numbers. So very sensitive information that I guess could be used to verify eligibility to vote, but also could be used to do other things like maybe round up people you think shouldn't be in this country. I don't know. Just riffing here. Spitballing. So part of this streak was that on Wednesday, a panel of the Sixth Circuit rejected DOJ's efforts to force Michigan to turn over its voter rolls, including sensitive voter information.

1:07:11I was a little worried the decision wasn't unanimous, but I'll just try to put a pin in that. Last Monday, in a different lawsuit, a federal judge in the District of the District of Columbia ruled that the DHS program known as SAVE, which aims to verify citizenship and eligibility for voting, violated federal privacy laws and was wrongly identifying eligible voters as non-citizens. And she ruled that the system could no longer be used. So despite this unbroken losing streak, the administration continues to pursue its efforts to get this kind of data. According to reporting from multiple outlets, the U.S.

1:07:45Postal Service has been instructed not to deliver mail-in ballots in states that refuse to provide this voter information to the federal government. And if that stands, it will have obvious implications in states like Oregon, where mailed ballots are the default way to vote. Some other related voting news. Some of you may have heard that in a rare case of bipartisanship, both houses of Congress managed to pass an affordable housing bill. This is likely because soaring housing costs and the increasing inaccessibility of home ownership is a major problem for legislators on both sides of the aisle, but is perhaps a particular problem for the GOP, which in 2024 campaigned on an affordability platform.

1:08:27Well, folks, again, sometimes it bees your own people. Just hours before the public signing ceremony was to take place at the White House, the President announced via Truth Social, where else, that he would not be signing the Affordable Housing Bill into law, unless the Senate moved to enact the SAVE Act, which is the voter ID bill that experts argue will likely result in the disenfranchisement of millions of eligible voters, including those Americans who are not in possession of their birth certificate or do not have a passport, as well as married women whose married names are not reflected on their identity documents.

1:09:04So several of you have written in to ask what happens if the president refuses to sign a bill into law. The Constitution provides a few avenues. One is that if the president ignores the bill for 10 days, excluding Sundays, while Congress is actively in session, then the bill will automatically become law even without the president's signature. A second option is a formal presidential veto, which is the president returns the bill to Congress with a statement of objections within 10 days. Congress can either override the veto if both the House and the Senate vote to pass the bill again with the supermajority.

1:09:41If the override succeeds, the bill becomes law. If not, it fails. This typically is a procedure if the president has substantive objections to the bill, which doesn't really seem to be the case here. Here, the president just seems to be holding affordable housing hostage to disenfranchising the electorate. And I guess that brings us to the third option, which is the pocket veto. So if before the 10-day period expires, Congress adjourns and the president takes no action, then the bill dies. And that can't be overridden by Congress via the supermajority. So that option puts the ball in the hands of the party in control of Congress to call for an adjournment to facilitate the president's tantrum.

1:10:27This is not the first time the president has held legislation hostage to his whims. Earlier this year, the president derailed a bipartisan deal on intelligence and surveillance legislation while pressing lawmakers to adopt that controversial voting bill known as the SAVE Act. Now he's using a housing package that many lawmakers expected to be signed into law today as a new point of leverage, the art of the deal. The art of the steel. Yeah. In addition, there are other things going on in the executive branch that we should make note of. The Office of Legal Counsel recently released an opinion detailing its take on obligations under the Americans with Disabilities Act and the Rehabilitation Act, as interpreted by the Supreme Court's 1999 decision in Olmstead v.

1:11:14Ziering. Olmstead is a hugely significant case for disability rights because it restricts the unnecessary institutionalization of those with disabilities. Olmstead held that, quote, unjustified institutional isolation of persons with disabilities is a form of discrimination that is prohibited under Title II of the ADA. And the prohibition on unjustified institutionalization, you would think, would require entities to move toward deinstitutionalization and the integration of individuals who are living with disabilities. But the executive branch has said you would be wrong to think that. The Trump DOJ seems to want to institutionalize more people, that is to take them out of homes and communities where they can receive at-home care, and put them into institutions.

1:12:00So it is basically trying to do to Olmstead what segregationists did with Brown. Say that while the decisions might prohibit discrimination, they don't actually require integration. Think about that for one second. OLC's opinion says, quote, We conclude that Congress has not imposed an integration mandate on states. Think about where you might have heard similar logic before. Well, you know what, Kate? All Congress has to do is pass a law making clear that when they enacted the ADA, they meant to emphasize integration. I know Congress is definitely going to do that. Well, Congress is obviously going to do that.

1:12:34And then the court will surely give it full expression. This is a court that's about empowering Congress, Kate. Absolutely. Like, let's be real. Yep. Okay, so the opinion, right. It unsurprisingly raises significant concerns given that it effectively says people with disabilities don't have a right to live in their communities. It is a recipe for institutionalization of persons with disabilities when states and the federal government refuse to offer services and support and accommodations. And who do you think might have had a hand in pushing for this legal slash policy change? Peewee German. That would be correct.

1:13:10So Bloomberg reports that, quote, White House advisor Stephen Miller was the driving force behind the Justice Department's recent memo authorizing states to institutionalize people with disabilities rather than fund community-based care. Absolute ghouls. There is no bright note to end the substantive portion of the show on. It is bleak. It's pretty bleak. This court is a menace. And we have eight more cases for them to hand down this week. Okay. Should we do favorite things? Yes. I'll start. I went to an MS Now America 250 event in Philadelphia, and I met a number of stricties there. It was really great to see you all.

1:13:57Also really great to be in community there. One of the speakers, Sherilyn Eiffel, noted friend of the pod, absolutely fantastic, mentioned that it's really good to be in community with people who support the same things that you support. Not to be in an echo chamber necessarily, but in these moments where things look bleak, we really need each other. And this was an enormous auditorium, a beautiful opera house, literally filled with people who cheered every time a photo of Barack Obama was displayed. And I didn't realize how much I needed that, but I kind of did need that. My second favorite thing this week comes from Jordan Thomas, aka Jordan the Intern.

1:14:39Our Jordan was invited to deliver the commencement address at his alma mater, the University High School in Newark, New Jersey, and he delivered a banger of an address to those graduates in the class of 2026. It was inspiring, It was sweet. It was thoughtful. Classic Jordan. And he urged all of these students to really engage with this whole question of the American experiment and government. And Jordan is not just brilliant and wonderful and a great intern. He's incredibly generous. He went and bought each of these graduates a copy of my book, The Constitution, and he gave one to each of them.

1:15:20So thank you for supporting The Constitution, my book, Jordan. And thank you for being such an inspiring figure to these young people. I know they got so much out of this graduation speech. And once again, we're just really lucky to have Jordan. I don't know how we got so lucky. I don't know. Jordan is the best. Yeah. Okay. So my favorite things are kind of social media stuff. One is Kate, you're on Hasan Minhaj doesn't know. For people who might not realize, I run the podcast social media accounts. So basically, anytime there's a collab request and whatnot, I get to see them. Wait, doesn't Michael do the YouTube collab request?

1:15:59Yes, that's true. One exception, but Leah does almost everything. Yes. Sorry, I shouldn't give you a heads up about all those requests. No, no, no, no, no, no. I enjoy receiving them. But yeah, no, I had fun with those. And then second is another thing on social media, which is JD Vance just let his whole fucking ass hang out, making explicit something. we have kind of joked about before was implicit, but you can hear him here. I'm actually fascinated by Nixon as a character in history. I think that his historical legacy is enjoying a bit of a renaissance, but I think deservedly so. As I joked with Robert backstage, if Watergate happened tomorrow, it would be like a 12-hour news story.

1:16:44The idea that it would have taking down a presidency is crazy. And by the way, if you look at the story of how the deep state took down Richard Nixon, it's not all that different from what the same groups of people, the same institutions tried to do to Donald Trump and the first Trump administration. There is a parallel.

1:17:12I also just at a personal level, you know, okay, young senator, vice president, writes some bestselling books, is hated by the media. It kind of sounds like J.D. Vance. So I'm a little, you know, I've always liked, I've always liked Richard Nixon. He's just straight up saying they want to make Tricky Dick great again. Yes. Which we knew. I really thought you're going to talk about the knee slap heard around the world. Oh, okay. So for people who didn't hear the knee slap, so second lady Usha Vance, I learned this week, why does everybody need a goddamn podcast? So she apparently has a podcast where she like has people read books to kids.

1:17:48Okay. That's awesome. She does it. The people with a podcast asking why the fuck does everyone need a podcast? Not everyone needs a podcast. We've had one for seven years. A long ass time. It's true. It's true. It's true. I mean, look, fine. You're welcome to say the same thing about But I really do think that the second lady, I'm not quite sure what value the second lady's reading books to people podcast is adding. But I guess she has guests. I mean, I learned about the podcast because she had her husband on. And anyway, so wait, tell the niece. That was just the context, Melissa. Now, what was the knee slap?

1:18:16She introduces him as her guest. And I think in what is supposed to be a moment of conjugal familiarity, he reaches over to say hello to her by slapping her on the knee and – I'm so embarrassed. I mean, if my husband greeted me like this in front of people, he would be a wasband, not a husband. Like he would be – this is wasband material. Whatever the opposite of chemistry is, that was what appeared on display in that knee slap. It was really visible to all. Listen, I mean, who knows? Like the only people who know what happened in a marriage are the two people in it. But I was like, this is a visual medium.

1:19:04You might want to make it look a little more convincing. Yes. Anyway, but then after I became aware, after the knee slap sort of turned me on to the existence of this podcast, I saw somebody put together a bunch of clips of her, like, opening remarks for each of the, I don't know, six or seven episodes, I guess. And I'm not sure she's a natural medium. It doesn't – it's not quite working, not just in the knee slap exchange, but kind of more broadly. But, okay. It's not for everyone, Kate. It's not for everyone. And to me – there was definitely – I definitely meant it somewhat self-aware to the not everyone needs a podcast.

1:19:40But yes, anyway, obviously, second lady, there's no scarcity. Everyone is welcome to join the podcasting world in any event. Okay, last favorite thing. Busy end of term, so I haven't been really reading fiction or anything like that. But I did want to just mention a district court opinion that I don't think we've had a chance to mention yet on the pod, which is one by the chief judge of the District of Minnesota, Judge Schiltz, quashing the subpoenas that the federal government issued to state and local officials, including Governor Tim Walz, Attorney General Keith Ellison, and a bunch of other Minnesota officials.

1:20:12This order was so unsparing and so blistering. I just want to quote a couple of lines from it. The dominant purpose of the challenge subpoenas is to coerce Minnesota officials into assisting the federal government with enforcing civil immigration law to harass and retaliate against them for failing to do so. The judge calls it a blatantly unlawful and unethical use of the grand jury process. And it just was really satisfying to see yet another district court like hand the administration its ass. and in the kind of midst of the Supreme Court doing everything it can to shore up the administration, it's just like an important reminder that district courts remain the bulwark against the worst excesses and lawlessness.

1:20:53And also on a less serious note, I will say I've really loved how often the word quashal, like I am engaging in quashal, I guess. I don't even really know how to use it properly. But when district courts quash things, the thing they are issuing, I guess, is quashal. And so I have heard that more than ever before in just the last few months. So can I add a quashle to things? We should maybe have a quashle section. Okay. The Southern District of New York's quashle of the Justice Department's efforts to seek or obtain invasive patient information about trans minors who receive gender-affirming medical care in New York City.

1:21:28In the bench ruling, the judge indicated that the request shocked the conscience. And so, yeah, that's in my favorite. All right. Well, that was our effort at ending on a high note. We tried. All right. I guess we will see and talk to all of you probably a bunch of times the next few days. So once again, I promise to be in a better mood, but no promises. You can't do that. Yeah.

1:21:58Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Rowell and Michael Goldsmith. Jordan Pammes is our intern. Our team includes Matt DeGroat, Ben Hethcote, Johanna Case, Kenny Moffat, Eric Schutt, and our music is by Eddie Cooper. Our production staff is proudly unionized with the Writers Guild of America East.