The Constitution (Melissa's Version)

26:00And happily for him, the University of Texas at Austin thought this was a Herculean task, and they changed his grade from a C to an A. Students, if this doesn't inspire you, I'm not sure what will. You don't like that grade? You changed the Constitution. And Melissa has provided you the building blocks to do so. I mean, if you can change the Constitution, I might rethink your grade. Sure. Okay. So the book is often aspirational. sometimes even Kate Shaw-ish optimistic. I know. I know. About what? This is like wicked. I've changed for the better because of you. Well, on the other hand, on the other hand.

26:43Okay, Elphaba, say more. I am Elphaba. I will enthusiastically embrace my Elphaba status. You also don't pull any punches when it comes to its flaws. You know, as you were kind of alluding to previously, you're very clear about the roles that slavery, sexism, elitism, and other forces played in shaping the document and its legacy. Do you think those influences are still understated in how we talk about the Constitution and how did you approach incorporating that into the book? One, we don't talk about the slavery in the original Constitution at all. It's perfect. That's fantastic. James Madison, you're doing great, sweetie.

27:16I think we should grapple with the fact that they are making compromises in order to keep people enslaved. and full stop, that it's all over the original document and we should talk about that and talk about where and how and why. And it's beyond just simply representation in the House of Representatives. She'll also talk about their deep-seated fear of people, like non-wealthy, non-slave-owning, non-property-olding men. Like they're deeply concerned. I mean, the Constitution as originally written is a document that is a lot about minority rule, like the Electoral College, the way the Senate is initially elected, like all of that is about a fear of the people.

27:55And we are constantly, I think, working toward dismantling the kind of elitism and racism that undergird the document. And that's the point of Congress and getting the authority from the Reconstruction Amendments to pass legislation like the Voting Rights Act. I mean, it's why I think so many people are alarmed by the decision in Louisiana versus Calais, because we specifically authorize Congress to be able to do certain things to like work within the confines of the Constitution to create a more perfect union. And now we have six people on the Supreme Court rolling that back in a way that's inconsistent with the idea of democratic rule and taking cues not just from the president, but also from Congress.

28:41So next question, we started off by talking about kind of popular invocation of the Constitution. And I think those kinds of invocations are largely kind of about the rights provisions in the Constitution, right? Like my Fourth Amendment rights, my First Amendment rights. So I think that those are the parts of the Constitution or at least the principles in the Constitution that people are the most familiar with or sort of reach for the most easily. But I think that we are these days, Americans sort of seem to be getting a weekly refresher on the more structural provisions of the Constitution, right?

29:12Like you mentioned, Uncle Luke, and Article 1, right? The Congress creating Article of the Constitution, Article 1, 2, 3, you know, kind of as we are all faced with the latest developments from the executive branch, the relative inaction in Congress and obviously the Supreme Court. So I guess how should a better understanding of those articles of the Constitution change the way we think and talk about the separation of powers and sort of how do you hope it changes the way kind of public discourse and public understanding sort of looks in terms of what is happening right now? I think one major point of the book is that the question of structure is not divorced from the issue of rights and certainly not among those who framed the Constitution.

29:55Like, you know, they created this original document without many explicit protections for individual rights. And they did so because they really did believe that if you divided governmental power, you would be protecting rights. Like they believe that the states would protect the rights of citizens. They believe that if you did not allow power to be consolidated in any particular branch, you would be protecting the rights of the people. And, you know, they had good reasons to settle on that kind of structural fix because, you know, one thing I say about this is the Constitution is kind of a trauma-informed document.

30:28Like, they are working through shit. You know, they had the whole colonial period where they have the British Parliament passing these laws that make their lives unbearable, intolerable. They have the Mad King who's doing all of this stuff. So, you know, they really fear the prospect of a too powerful federal government. So when they sit down, but they also recognize that you have to have a relatively powerful federal government because they have the trauma of trying to fight this revolutionary war with this Articles of Confederation that's basically like a friendship bracelet between 13 states.

31:00And so they want something that will bind them together, that will enable them to have a government that works, but they don't want anything that will allow power to be consolidated in a way that can be used against the people. So they see structure and rights going hand in hand, maybe not as perfectly as some people would have liked them to, but they get that. And, you know, they're journaling through it in this constitution. And I think that is something we should understand in real time. separation of powers questions like whether the president has the power to do x or y it's not just about the president's relationship to a coordinate branch of government it's about the broader relationship around the idea of limited government as a means of preserving the rights of the people so have writing the book changed how you think about teaching con law or how you think con law should be taught and not just writing the book i mean you know i think the work that kate and i did earlier this year in that Supreme Court review piece on Scrimetti really focused me in thinking, maybe I should do more with executive constitutionalism in my con law class.

32:04I taught a pretty traditional con law class, which focused a lot on the court. I think that's a mistake right now. And I'm happy to admit that my course will be updated to reflect the changes in our landscape. And I will be talking more about how the administration is advancing a particular vision of sex equality using these executive orders. I think the work that the three of us did in what we are calling the juridical presidency, which is forthcoming in Northwestern, maybe it'll have a new title, but this whole idea of presidential settlements being a workaround and being a separate kind of separation of powers problem is something that I'll talk about in structure.

32:41So, you know, just the work that we've done together, I think, has really illuminated for me how I might change the course. But, you know, one of the things I always do in my course is the first assignment is to read the constitution. And, you know, I don't ever assign my own work. I don't think I'll ask students to buy or read this book, although I'm sure my publisher is like, what? Definitely. But I do think I might just assign the preface just as a reminder to them that it's not academic, like what we're doing. Like it is academic, obviously, you're in law school, but this is a bigger enterprise than just getting to the end of the semester.

33:16It definitely is. Okay, one more question in the book, which is, you could obviously have written an entire book and people have about any one article or one amendment. And I'm curious, you know, you had to make choices about what to include and what to cut. Were there any particular annotations or, you know, stories or characters or anything else that you ended up kind of like leaving on the cutting room floor or just like ideas or debates that you wish you had had more time or space to explore? So the 19th Amendment, I wanted to talk more about some of the women who are involved there, not just, you know, the Crystal Eastmans and Inez Mulholland's and Elizabeth Katie Stanton and all of those people, but, you know, people like Mary Church Terrell, like some of the black women who were involved in the black women's club movement that did a lot of this work around the 19th Amendment and weren't really included by the traditional suffragist crowd.

34:08I think we had to take out some of that. There was a lot of effort, I think, to deal with some of the more technical parts of the Constitution and make it more digestible and reader friendly. I mean, like some of it is just like, you know, the decapitation parts of Article 1. I'm just like, I spent a lot of time just trying to make that user friendly. But there are just a lot of really good stories. I mean, I think we forget, like, they're just really amazing and inspiring stories. I love the story about how the 19th Amendment finally gets passed because this Tennessee legislator, he was prepared to vote against the amendment.

34:44And then his mother writes him and is like, I think the fuck not. You will vote for this. And he does it because he's a good boy. We need more good boys. And that scene is dramatized in the musical stuff very well. You're a good boy. Okay. So quick lightning round. We are going to put you on the spot with four questions. maybe we will chime in as well. First, what's one constitutional provision you jettison? Electoral college. Oh, I was gonna say the same. Okay. If I can't do that one, I would do second amendment. Second amendment. Okay, yeah. Okay. All right, we got three. That's a good new constitution.

35:20I like it better already. Second, what's one you'd add if a contemporary populist movement were to take shape? That's a good one. Maybe a right to education? I always think just making it easier to amend. Oh, that's true, too. It's sort of the kind of cheating, like if you had a genie and you wished for like a thousand wishes. Like, you know what I mean? Like maybe that's a cop-out. But it just does feel like an elemental problem is that Article 5 makes it so hard to amend the damn thing. So it's hard to choose one thing, but one thing you could choose that would facilitate a lot of other things would be making it easier to amend.

35:50Well, you know, an amendment that addressed partisan gerrymandering or any kind of gerrymandering would help get around the proportional representation. You could do proportional representation or an amendment that told states they had to set up independent redistricting commissions. Exactly. You could do that. That's, I think, those are all – D.C. statehood? Like, just – I mean, you don't need to do it in the Constitution. You can do it by legislation. But if you make D.C. in the Constitution, why not make it a state in there, too? Or give it, you know, actual meaningful representation in Congress.

36:16The amendments dealing with D.C. are so fascinating because, like, it's so clear how much it's about race. Yes. I mean, it's just – I mean, and Puerto Rico doesn't make it in because there's no amendment dealing with Puerto Rico. But you could imagine it's likely the same reason. Totally. Okay, what is a provision you leave exactly as written and just tell people to actually read it or interpret it differently? The Privileges or Immunities Clause of the 14th Amendment, which could be doing so much more work. And no, Justice Thomas, I'm not looking at you as a means of incorporation. It could have done more.

36:52It could go further, Justice Thomas, if you know you know. If you know, you know. I'll just say it's the week after Calais. It just feels like 15th is right there, and we're not actually interpreting or enforcing it properly. I would say Section 5 or Section 2, the enforcement clauses of the Reconstruction Amendments. Yeah, okay. Yeah, those are – you know, you have this – Section 2 of the 19th Amendment, Leah, I think we don't do enough about. And you and Rick Hassan wrote a terrific piece in the Georgetown Law Journal about this, which I cited here. Enforcement clauses for the win. Mm-hmm. All right, wait.

37:25Last question. Better co-author slash collaborator, Andrew Weissman or James Madison? What if I – okay. This is no shade to Andrew. I love Andrew. I don't know James Madison. So obviously I would say Andrew Weissman. But if I had to pick the best co-authors and collaborators, it would be you guys. No, hands down. Aww. So yeah. Andrew was great. James Madison. Well, you know, we worked fairly well together. I don't know him. I don't know him. I did go to his house once. I did go to his house once. Had me over. Took the tour. That was great. That was great. Wow. This is a probably perfect place to end.

38:12Okay. We got to end on a much happier note. I was going to make it happy. Okay. I was going to say some happy things. But it gets to follow because she's even happier. so wanted to thank our intern Jordan Thomas for helping us with this episode and also just to thank you Melissa you know you said Kate and I were your favorite collaborators like I cannot believe we have been doing this podcast for seven years I count myself as lucky every single day to get to work with you and just getting to cheer you on and see all that you are doing is incredible I know this is what they're saying to each other at one first street I know just as It's like, Sam, you are my favorite collaborator.

38:56I love that. Yes, I will, at the risk of being saccharine, say, yes, the same. Wow, we're coming up on seven years in June. We're going to have a seven-year anniversary. We have to throw a party, ladies. We have to throw a party. But I will say, no, it is also fun. In New York, be there, be square. Yes, yes. Oh, that's true. We kind of are. We just need like a good after party. But it is, I mean, it's a total privilege to get to collaborate extremely closely with both of you. And then it is also kind of fun to sort of step back and then see like if you're doing a solo project like this. Melissa, it's like incredibly impressive, really important contribution.

39:26Loved reading it. Loved getting to talk to you about it and have both ordered multiple copies and will tell everyone. And I love pitching it for a non – we spend a lot of time with lawyers and law students. And they could use this book too. But like that is really not who you are targeting. Many, many, many more people are not in those two categories and need to know and understand more about the Constitution. And they should all buy and read this book. I agree with that. wholeheartedly. I think definitely buy and read this book, The U.S. Constitution. If you're looking for a great gift bundle for anyone graduating from high school, I would say The U.S.

39:58Constitution plus Lawless. Like, that's a two-up line. Hey, hey. First, you get a neutral take and then some snark. Why not? Let's do it. And then we ether it. Then we light it up. You get the neutral take. You get to see the Constitution. Then you get to read about what the Supreme Court has done to it. It's a diss track. roll it up and smoke it yeah exactly first you pour salt on it lick it which is the shot with that we have circled back to the beginning we landed this play ladies well so thanks for joining us on your own podcast thank you for having me on my own podcast it's great it's great anytime girl anytime publishers please come back soon people with their own publicity outlets great authors I mean, we really do work very hard on this podcast.

40:51So I think it's A-OK to use the platform to flog the books that we also pour our blood, sweat, and tears into. People don't get that. Like, we spend a lot of time doing this. Yes. A lot of time. And again, it's cathartic. It's gratifying. We think we put something valuable out into the world. But it's a lot of work. And so damned if we're not going to also use it to tell you all about the books. Exactly. There we go. The U.S. Constitution, a comprehensive and annotated guide for the modern reader. Strict Scrutiny is brought to you by bookshop.org. Would you be surprised to learn that we are living in the resurgence, a renaissance, some might say, of independent bookstores?

41:32More than 1 ,000 new bookstores have opened in the last five years. And I love this because independent bookstores do more than just sell books. They take care of and pour back into their communities. They create safe spaces that foster culture, curiosity, and a love of reading. And when you purchase from bookshop.org, you're supporting more than 3 ,000 local independent bookstores so they can continue their essential work in their communities. And if you go to bookshop.org right now, you can get one of my favorite reads, The U.S. Constitution, a comprehensive and annotated guide for the modern reader by yours truly, Melissa Murray.

42:09This is such a fabulous gift for Mother's Day, Father's Day, graduation gifts, everyone in your life who wants to support democracy and be more up to speed on the Constitution than even those on our highest court. And you can do it by shopping at bookshop.org, supporting democracy and supporting independent bookstores all at the same time. What's not to love? Head over to bookshop.org and use our code STRICT26 to get 10 % off your next order at bookshop.org. That's 10 % off at bookshop.org with code STRICT26. Strict Scrutiny is brought to you by Fast Growing Trees. Did you know that Fast Growing Trees is America's largest and most trusted online nursery with thousands of trees and plants and over 2 million happy customers?

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44:53That was a fun conversation about an awesome book on constitutional rights. And now on to voting wrongs. On Friday, the Virginia Supreme Court, in a 4-3 decision, ruled that the legislative maps that Virginia voters approved in the recent election cannot go into effect for the upcoming midterms. Virginia voters had approved a set of maps that would counteract Republican gerrymanders in Texas, Tennessee, Louisiana, and elsewhere. The decision rests on something of a debatable, and I'd say dubious, technicality. Virginia voters had previously banned partisan gerrymandering in their state constitution.

45:28So to make the new set of legislative maps and carry out the partisan gerrymander that the voters wanted, they had to amend their state constitution. Now, the Virginia constitution has a complex process for amendment. Amendments have to first be proposed by the legislature. Then there has to be a general election. And then the amendment can be submitted to the voters to be approved. That process requires there to be an intervening general election. So in between the legislature's proposal of an amendment and the voters approving the amendment. In this case, Virginia said it complied with that requirement for amending the Constitution because the legislature proposed the amendment four days before Election Day.

46:06However, in a 4-2-3 decision, the Virginia Supreme Court said that that process didn't count because by the time the legislature proposed the amendment, voting had already started in the Commonwealth. Therefore, the amendment didn't go through the constitutionally required process, according to the court. There wasn't an entire election between the proposal and the adoption of the proposal, and therefore the amendment couldn't go into effect. This wipes away the four possible additional seats in Congress that the new map might have given Democrats and, again, would have given Democrats a shot of winning back the House.

46:41In case you're wondering, a majority of the justices on the Virginia Supreme Court were effectively chosen by the Republican Party. Justices in Virginia are selected by the state legislature, and a majority of justices on the Virginia Supreme Court were selected when the state legislature was controlled by the Republican Party, and Republicans controlled at least one of those legislatures because of their extreme partisan gerrymander. So do you see how it all works together? It's like, think about that meme of the guy smoking cigarettes furiously while pointing at a board filled with like strings tied together.

47:17That's the conspiracy theory. Here it is in action. Well, I mean, reading this opinion, I felt like the picture of Ben Affleck smoking the cigarette outside the Dunkin' Donuts because it's super rich reading the justices in the majority complaining about partisan gerrymandering when their decision effectively locks in Republican partisan gerrymandering. The decision is obviously hugely disappointing and it's a voting wrong because it nullifies an election after the fact. And that's a pretty scary development. If you remember in the 2020 presidential election and the litigation after that election, the Stop the Steal movement and the efforts to undo the election via litigation in courts were met with firm opposition precisely because courts aren't supposed to invalidate elections after the fact.

48:01And no court in the 2020 presidential election was willing to actually throw out votes that had been cast. And this Virginia decision is a scary step in that direction. I know it's not a decision about a candidate. And yes, it's about the process for submitting an amendment. But still, the Virginia Supreme Court refused to rule on this issue before the vote. I understand the legislature was arguing that they couldn't, but the court still had the option to. Then there's the fact that other Republican-controlled states are being allowed to do exactly what the Virginia legislature and Virginia people attempted to do, change election rules after an election got started.

48:37In Louisiana, Louisiana is attempting to suspend the election in which more than 40 ,000 Louisianans already voted. And I will wait for a court, ideally, let's say the United States Supreme Court, to tell them that they can't do that. They're going to be waiting a while. Oh, wait, the Supreme Court just encouraged Louisiana to do it. Yeah, this after the fact point is so important. So remember, we talked a lot on this podcast about unsuccessful North Carolina Supreme Court candidate Jefferson Griffith, who tried and came kind of close to succeeding to throw out the results of an election that he had lost, asking courts to change the rules surrounding voting months after the election had, you know, not broken in his favor.

49:16However, he was not successful there, but this does feel like a kind of seal-breaking moment in the invalidation of an election. Like you said, Leah, not a candidate election, but still a really important one that has been invalidated on the narrowest of margins after the fact. And as you said, it's especially rich in sort of contrast to other states that in the wake of Calais are scrambling to change their legislative districts after voting has already begun. And, you know, that's not the only double standard that is being applied in the gerrymandering wars. The Virginia Supreme Court, remember, said this provision was procedurally invalid and it ran afoul of the state's ban on partisan gerrymandering.

49:52So, ladies, guess what other state also has a state constitution that bans? Let me guess. Partisan gerrymandering. Let me guess. Is it the Sunshine State? Is it my state? Florida! If it's Florida, we know. Melissa is ding, ding, ding. She has its number. Yes, the Republican-controlled and Republican-stacked Florida Supreme Court has already chosen not to enforce that state span on partisan gerrymandering against Florida's gerrymander. You know, different kind of gerrymander, Republican favoring rather than Democratic favoring. So clearly that's the principled basis on which to distinguish Virginia from Florida.

50:27I'll just say I've had Florida's number since 1983. Indeed. And it is why I live here. The year you were born. The year I was. Yeah. Correct. All right. The Virginia Supreme Court decision leaves the Democratic Party with basically no options to try and counteract the ongoing Republican gerrymandering that has occurred in the wake of Calais, certainly not in time to impact the upcoming 2026 midterms, although there is more that they might do to impact the 2028 elections and thereafter. after republicans seem to be targeting around two to four congressional seats in alabama and louisiana and perhaps additional seats in mississippi and south carolina as well which is all to say that this entire landscape seems entirely anti-democratic and extremely extremely effed up and let's just put blame where blame is due this kind of anti-democratic asymmetry is only possible because of the United States Supreme Court.

51:29So let's go to the Calais catastrophe, the ongoing impact of Louisiana versus Calais. Let's get started. Right. So last episode, we floated the idea of a recurring segment about Louisiana versus Calais and its fallout, just to keep kind of everyone up to speed on how momentously awful this decision was and is. Calais took out what remained of the Voting Rights Act, allowing white Republicans to gerrymander and lock themselves into power by locking out of power voters of color and voters of different parties. Last week, the court decided that its decision in Calais was so awesome, more on how awesome it is in a moment, but so awesome that the decision had to go into effect immediately.

52:13Can't wait. Typically, after the court issues an opinion, by its rules, it usually waits 32 days to issue what is called the judgment or the mandate. And what exactly is the judgment or the mandate? Well, you can think about it as the court making its decision official, like for real, for real. So something that has the force of law and that lower courts have to abide by. So certifying the judgment returns the case to the lower federal court and issues a directive to the parties to take action in the case. So here the court had already released its opinion saying that Louisiana need not and could not create a second Black Opportunity District as a way of complying with the Voting Rights Act.

52:53But issuing the judgment in the case effectively tells Louisiana, you would be in violation of this if you had a second Black Opportunity District. So do something to change that. Releasing the judgment in Calais is a way of accelerating Louisiana's already hurried efforts to draw new districts that erase political opportunities for Black voters. It effectively eliminates the lower court injunctions that had required them to do so. And that's exactly what the court did. Rather than wait the usual 32 days to certify the judgment and issue directives to lower federal courts and to the parties, the court certified the judgment in Calais in a matter of days, so less than one week after the case was decided.

53:30But why? Why so speedy, fellas? What's going on here? Is there like, I don't know, an election looming or something? Could it be that in some places, including Louisiana, there is an election that is already underway? So if you really want to stick it to Black voters, you better get to step in to immediately ensure that the election is conducted under a set of maps where Black voters are basically locked out of political opportunity. Could that be what it is? No, I'm sure it's neutral principles. Passive virtues. Exactly. But Justice Jackson was not going to let this go as she shouldn't and we shouldn't and you all shouldn't.

54:10So she dissented from the court releasing or certifying the judgment and noted that the court has granted an application to issue a judgment over a losing party's objection twice in the last 25 years. and that doing so here gives the appearance of partiality. As she writes, quote,

54:41So Sam Alito, the whiny little bitch from New Jersey, could not handle someone accurately describing what he had done. Saying the truth out loud is, as ever, the meanest thing you can possibly do to Sam Alito. And here's what Justice Alito had to say in response to this stinging rebuke from Justice Jackson. First of all, he called it baseless and insulting. And I imagine Justice Jackson sat at her desk and thought, yes, exactly. That's what I was trying to do. I'm glad you picked up on it. But here's what he really had to say. Quote, The dissent would require that the 2026 congressional elections in Louisiana be held under a map that has been held to be unconstitutional.

55:23This is me staring in Allen v. Milligan, where the Supreme Court allowed the 2022 midterm elections, the elections where Democrats lost the House, to be conducted under a map that the court would later invalidate. I will also note that requiring states to hold elections under maps that courts had found unconstitutional is exactly what the Supreme Court required when it stayed lower court decisions out of Wisconsin during COVID and also out of Texas way back in the olden days of Chex Notes December 2025. In those cases, lower courts found that the state's election rules were likely unconstitutional.

56:02And in each case, the Supreme Court said the court's decision had come too close to the election to do anything about the possible illegality. But I guess now we're going to fix all of that. We're going to get on it and we're going to move quickly, nimbly, agilely to make these elections happen under really good maps. So just to cap it all off, Alito also toned police Justice Jackson, closing out his statement by saying, quote, the dissent's rhetoric lacks restraint. His statement was joined by Justices Thomas and Gorsuch. So in addition to the developments in Louisiana, other states are also hot to trot on erasing black electoral power.

56:39the Tennessee legislature, as expected and as encouraged by Marsha Blackburn and Sam Alito, adopted a map that breaks up the only minority opportunity district in that state by breaking up the city of Memphis into multiple districts. And Memphis, as friend of the show Ari Berman has pointed out in the past week, has been a single legislative district since 1923. So for over a century, the city of Memphis has been a single legislative district, as makes perfect sense. This new map erases that. It also effectively prevents Memphis from sending the incomparable Justin Pearson to Congress, which I am quite sure was not an accident in the mind of these state legislators.

57:20Justin Pearson was one of the state legislators who was kicked out, one of the three state legislators who was kicked out of the Tennessee chamber in response to his protest over gun rights. So I guess he's too much of a rabble rouser to go to Congress in any event. Also making moves is Alabama. Alabama has requested to lift the injunction from Merrill v. Milligan. Again, Merrill v. Milligan was the case in which the Supreme Court said that the Voting Rights Act required Alabama to create two minority opportunity districts. Merrill v. Milligan is also known as Allen v. Milligan, is also the case that's pretty much identical to Louisiana v.

58:03Kelly that the court decided in 20 - No, totally different, Melissa. John Roberts tells us that. As he tells us, because yes, John Roberts was for Merrill v. Milligan, and he's against it in Louisiana v. Kelly. But they're effectively the same cases. It's just that it happens that Merrill v. Milligan had to be decided in 2023, a year after Dobbs, and 10 years after Shelby County. And that seemed just maybe a little too on the nose, even for this court. In any event, in Merrill v. Milligan, Alabama tried to create only a single minority opportunity district. And now its request to lift that injunction is kind of awkward, given that in Calais, Justice Alito said that the Milligan case was totally different.

58:44Right? Again, these guys just keep telling on themselves. It's not totally different. It's the same thing. This is awkward as hell, super anti-democratic and super anti-black voter. Yeah, we're fascism maxing now. And if you're wondering, could anyone have guessed that Alabama would be foaming at the mouth to erase minority opportunity districts? We give you this exchange from the oral argument in Merrill v. Milligan between Justice Kagan and the Solicitor General of Alabama. General, some of your arguments, I think not all of them, but some of your arguments would strongly indicate that Alabama could enact a plan with no majority-minority districts.

59:29Do you think Alabama could do that? Under the current guidelines, I don't think we would be able to because court retention is one of those principles. What do you mean under the current guidelines? I'm interested in whether you think, as a matter of federal law, as a matter of the Voting Rights Act, you are prohibited from enacting a plan that has zero majority-minority districts. I think it would depend on the guidelines that are being proposed there and the motivation. So you think that there are circumstances. I mean, this is important to me because some of your arguments sweep extremely widely, maybe most of them.

1:00:08that there are circumstances in which a population that is 27 percent of the state's population could essentially be foreclosed from electing a candidate of their choice anywhere. Your Honor, there's always going to be that intensely local appraisal to see what was going on there. It all depends. You know, just it all depends. You will note that in that exchange, Alabama refused to rule out the possibility of drawing zero political opportunity districts in a state where one third of the population is black and more than one third of the state votes Democratic. Indeed, the Alabama governor posted a proposed map with zero opportunity districts.

1:00:51In addition to all of the boy law of Calais, The Guardian found there was even more boy math in the decision than we thought. So last episode, Kate noted that Alito had said, hey, there's no racial turnout gap in Louisiana anymore. Look at the numbers for these elections, which just so happened to be elections when Barack Obama was at the top of the ticket and Voting Rights Act preclearance was still in effect. Well, in addition to those boy maths, the Guardian found that Alito measured the turnout gap on the basis of what it called an unusual methodology, one that measured voter turnout with reference to the total population when the widely accepted approach is to consider voter turnout as a proportion of citizen voting age population or voter eligible population, which would exclude non-citizens and people who can't vote.

1:01:39Only time Sam Alito wants to count citizens. Because the problem is, had Alito used the acceptable or accepted method, then black voter turnout wouldn't have exceeded white voter turnout in the 2016 presidential election, whereas it did under Alito's boy methodology. But under his methodology, wasn't he basically counting fetuses? Be honest. You know, why not? Why not? Anyway, two other notes on Calais. democracy docket reported that the lead plaintiff in kelly one bert kelly was at the stop the steal rally at the u.s capitol on january 6 2021 because that's where all the freedom fighters who want safe and fair elections were in retrospect wasn't the least shocking revelation like just i mean it's almost like all of this was an attack on the vra the stop the steal movement all of this is a war on democracy.

1:02:33Who said that? I think we said it many, many moons ago anyway. But did they listen? I recall something similar. So other note about Calais, a friend of the pod, Sherilyn Ifill, made an appearance on The Daily Show where she spoke with Jon Stewart about the Supreme Court nuking the Voting Rights Act in Louisiana versus Calais. And during that conversation, Jon came up with a way of describing Sam Alito's take on racism and racial discrimination that needs to happen. Like everyone needs to make this happen. So here it is. Is the idea now that to try and address that is in itself racist, that it's literally he who smelt it dealt it racism?

1:03:15Is that what we're dealing with? I hate that that's what it is, but that is what it is. Yes, it is the whoever smelt it dealt it theory of racism. I like it. Yes, it's great. The fart The theory of racism. Yes. Yeah. Link it to Sam Alito forever. Yeah. The supremacist court. Brett Kavanaugh is like, what's me? What's me? Right. Exactly. Exactly. What me? Brett Kavanaugh is like, I know how to play this game. He sure does. We can call these Alito districts now. Right. Yeah. That's good. That's good. All right. So the same week that the court decided to make an exception to the usual rule we were talking about earlier about when a judgment issues in a case where the exception just so happened to facilitate Republican redistricting, racial minorities and Democrats totally out of power, the chief justice gave a speech at a judicial conference where he said, quote, I think they view us as truly political actors, which I don't think is an accurate understanding of what we do.

1:04:19He also had this to say, quote, we're not simply part of the political process, and there's a reason for that. And I'm not sure people really grasp that. So they view us as political actors, says the guy who repeatedly behaves like a political actor and not simply part of the political process, says the guy who's literally remaking the political process. Also, sir, have the courage to make these remarks on camera so that we can do a YouTube rapid reaction video to your remarks. We can still do it. I'm happy to do it. Okay. We should make like a little, you know, blow up face of John Roberts that you can hold in front of yourself while you recite it to simulate it as best we can.

1:05:01I also have to say it takes real cheek to say something like this maybe two weeks after Jodi Cantor and Adam Liptak put your ass on blast, where you literally were being a political actor, taking statements that weren't even in the court record because there was no record in the clean power plan. But you're watching Fox News and you're really pissed about what EPA administrators are saying, they will not play in your face, sir. And so you then decide to depart. Nobody puts John Roberts in the corner. Nobody puts John Roberts. I'm the captain now. I'm the chief justice now. And then you literally depart from decades of precedent governing the shadow docket.

1:05:44And then you want to say that you're not a political actor or you don't understand why the public thinks you're a political actor. Like, be so for real. John Roberts is not for real. No. Can I just come back to something we said earlier in the episode, we were quoting Justice Jackson's dissent from the mandate issuance order. Principles give way to power. Like, I just think that actually is as good a summation of like what we are seeing on display. And they don't like being called out on that. And this is the temper tantrum that we see when they are. The chief also had this to say, quote, one of the things we have to do is issue decisions that are unpopular.

1:06:21I don't know that I would call it unpopular to completely eviscerate a statute that had broad bipartisan support and had been reauthorized multiple times by a democratically elected Congress. Like maybe our understanding of popular and the Vox Populi are just completely different, but I would not call that just unpopular. Also, I'm sure it was so hard for you, John, to nullify the voting rights act. It's not like you haven't wanted to do that for like four decades. I mean, I was working on it for so long when I was in the White House, but then I stopped. I mean, I did try and do it when I was in the DOJ, but I mean, no one thought it would really happen.

1:07:04So now I'm just kind of like, wow, look at me. The brave truth teller, John Roberts. Okay, so speaking of DOJ, where a young John Roberts cut his teeth, like learned the skills that we are now all living under, there is good news from the Department of Justice, which is that if you are looking for a job, the civil division of the DOJ, once one of the most prestigious places a young lawyer could work, is apparently so desperate to hire people, it is now handing out signing bonuses of up to$25 ,000 to hire lawyers who can work out of non-DC offices, including New York, San Francisco, Francisco, Dallas, and Raleigh.

1:07:42Make DOJ great again, I guess? It actually turns out that the federal government is offering all sorts of job perks these days. So let's open up the liquor cabinet and see what these guys have in store for us this episode. Okay, so more reporting from The Atlantic, which has reported since we last recorded that, quote, FBI Director Kash Patel, and that's Cash with like a dollar sign instead of an S, has given out bottles of his personalized whiskey to FBI staff as well as civilians he encounters in his duties. The Atlantic describes the bottles as being engraved with the words, quote, Cash Patel, FBI director, and a rendering of an FBI shield.

1:08:22Surrounding the shield is a band of text featuring Patel's director title and his favorite spelling of his name, as I said, Cash with a dollar sign. An eagle holds the shield in its talons along with a number nine, presumably a reference to Patel's place in the history of FBI directors. J. Edgar Hoover would be so impressed. It's J. Edgar Boozer. Yeah, I heard the guys on Pod Save using that term. I don't know who coined it, but I really like it. I'll credit them for it. But in any case. I mean, that might be the most significant thing that Cash Patel has ever done, like make you look fondly on J.

1:08:54Edgar Hoover. On J. Edgar Hoover. You know, his I don't have a drinking problem line of personal bourbon is answering questions raised by his I don't have a drinking problem line of personal bourbon. This report from The Atlantic came from the same reporter, Sarah Fitzpatrick, who reported the story about Cash Patel allegedly being hungover and inebriated while on the job. This is the same reporter that Cash Patel has sued. This time, according to Fitzpatrick's reporting, quote, the FBI did not dispute that Patel gives out bottles of whiskey inscribed with his name, but a spokesperson portrayed the gifts as routine within the FBI and the broader government.

1:09:39Not unconstitutional to give gifts. I was going to say the government, according to Harlan Crowe. That's been a lot of time with the FBI in my day. I mean, Cash is going to have to step this game up. It's just personal bottles of bourbon. Like, where's your private jet, sir? Anyway. He's a humble FBI director is all he got. Wait, finish reading this quote, though. He does treat the FBI jet as his personal jet. So there's that. Why not both? Well, OK. So back to the story. The story continues, quote, when I reached a former longtime senior FBI official to ask whether he'd ever seen personally branded liquor bottles distributed by a previous FBI director, he burst out laughing.

1:10:19And that is the right reaction. because no one has ever given out. You don't think Jim Comey was doing this? Can you imagine? I mean, the whole episode is horrifying and also somewhat amusing. Go on, go on. The dollar side. I'm just like, sir, what? I mean, it's giving wag culture. It's giving loser incel culture. Like these guys trying to fulfill all of their dreams and their ideas about what it means to be a man that they could never actually achieve outside of this grift. It's just embarrassing. It's pathetic. So it's all those things, embarrassing, pathetic, horrifying, kind of funny. But I mean, really not at all funny is reporting from last week also involving the reporter we were just talking about, Sarah Fitzpatrick at The Atlantic, who has broken now these two stories about Patel.

1:11:14And she is being targeted by the FBI with a criminal leak probe, according to reporting from last week. So I guess, again, it's not surprising that that is the kind of misuse of power that these guys are engaging in, targeting critics. It gets worse. It feels like a very alarming escalation. It gets worse. MS Now has reporting from Carol Lennig and Ken Delaney and saying that Cash Patel has ordered polygraphs of people close to him in the FBI to try and determine the leaker. And I'm just saying, John Roberts is right there. If you want to find a leaker, go to John – oh, wait. Wrong guy. Never mind.

1:11:54You go to the marshal and you have the marshal just ask people, are you the leaker? Are you the leaker? There's a way to do this, Cash. No, but can't you get them to notarize a document saying that with their little stamp? And then you know for sure. Okay, so quick lightning round with a few more pieces of news. First, we have to talk briefly about the fact that the EEOC has filed a quote, like huge scare quotes, civil rights lawsuit against the New York Times on the theory that the Times discriminated against a white man by not giving him a promotion because that's who gets to file civil rights lawsuits in Donald Trump's America.

1:12:28Melissa, you had a great thread about this lawsuit. Do you want to repurpose any of it on the pod? I'm just going to say straight up. One, there's also reporting from New York Magazine and The Cut, I think, that may actually identify who this person is. So if you want to know, I guess, go there. I will say, I don't think the point of this lawsuit is to prevail in court. As I note in the thread, there has been no legal determination that efforts to remedy rampant underrepresentation in certain employment sectors is impermissible, whether under the constitution or under statutes. So that's not what the EEOC is after here.

1:13:08I think what is really happening is that this is an effort to cow newsrooms into basically thinking twice when they might hire a woman or a person of color and to cement the underrepresentation of those groups that has long persisted in newspapers and other legacy media for generations. And to the extent this shapes coverage of certain issues and shapes the way people understand the issues and how it relates to a democracy, I think all of that is the point. Indeed. This is this administration's MO, like intimidation, deterrence, basically stopping people from doing things that they can do, like basically making them obey in advance.

1:13:55One thing they couldn't do is keep E. Jean Carroll from spending Donald Trump's money. So the DOJ has now stepped in into the appeal of E. Jean Carroll and the verdict against Donald Trump. And they've basically said the president wants a freeze of the payments being made to her. So we will see where that goes. But I'm pretty sure E. Jean Carroll was just going to tear it up with that money. I wonder if he just doesn't have it. They've also asked for the federal government to basically stand in for Donald Trump rather than having the litigation against him. We have talked about this before in our paper forthcoming in Northwestern about personal litigation that takes on a very public import and persona and profile.

1:14:38Yeah, and this is the kind of like most literal expression of that, seeking to have the government step in in this lawsuit to say Trump was somehow acting in his official capacity, at least in terms of some of the remarks he made against – about E. Jean Carroll that were what led to the$80-plus million verdict that she obtained against him. We will see how that effort to substitute fares. Another decision, the Court of International Trade ruled on Thursday, last Thursday, that the president's new theory about tariffs is also wrongheaded and fucked up. The president apparently does not have the authority to impose tariffs under Section 122 of the Trade Act of 1974.

1:15:16That's the latest statute that he's invoked to underwrite these tariffs. Those tariffs that he imposed in the wake of the court's tariff decisions imposed 10 % tariffs on various imports. Notably, the Court of International Trade's ruling not only invalidated those tariffs under Section 122, they also ordered the administration to refund the money collected, something that the Supreme Court's decision did not do. Yeah. And a district court ruled for the American Historical Association and other groups that had challenged the grant terminations by the National Endowment for the Humanities. This was the case that generated the Doge Bro depositions.

1:15:57It's a remarkable opinion that details just the stunning carelessness and hubris of Doge. And that's about it. Utterly predictable, I would say. But good to know. Utterly predictable. And that is the news. But stay tuned now for our conversation with Nancy Northup and then for our favorite things.

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1:17:40And now to help us break down what the fuck is going on with Mifepristone is Nancy Northup. Nancy is the president and CEO of the Center for Reproductive Rights, the organization that represented the Clinics and Dobbs v. Jackson Women's Health Organization. The decision, which our listeners, of course, will know, is what overruled Roe v. Wade. The Center for Reproductive Rights also represents the many women in several different states who are seeking decisions clarifying the scope of medical exemptions under state abortion bans, including cases in Texas and Tennessee. Welcome to the show, Nancy.

1:18:10We are so appreciative of you taking the time. Thank you. It's good to be here. Let's just sort of get right to it. Why are anti-abortion forces targeting mifepristone the way they are right now, and why is that such a big deal? Well, they're targeting mifepristone because abortion pills have been a lifeline in post-Roe America. Currently in the United States, two-thirds of people getting abortions are doing so via abortion pills. And specifically, since the FDA has allowed telehealth to be used, that you can have a visit on your computer with your provider and then receive the pills by mail or pick them up in a local pharmacy.

1:18:52Now one in four people are having their abortions that way. So it's a big deal. They don't like the fact that people want to get abortion care and they are getting abortion care in a way that is safe and effective, according to the U.S. Food and Drug Administration. And can you talk a little more, Nancy, just sort of before we go deeper? So you talked about just how common and kind of widespread this particular use of mifepristone is, And you said safe and effective at the end. Can you just talk a little bit more about kind of what we know about the safety and efficacy of abortion pills, which include mifepristone?

1:19:26Certainly. I mean, going back over 25 years, the FDA approved medication abortion, a regime that involves two different pills, Mifepristone and Misoprostol, as safe and effective for being on the U.S. market. It had been approved years before in France, but the U.S. finally caught up 25 plus years ago. And so it's been on the market. There were initially restrictions that the FDA put on it, unnecessary restrictions from a health perspective, but there were restrictions put on it for years. And one of those restrictions was that you had to go in person, but the FDA first during COVID and then afterwards approved it also by telehealth.

1:20:15But there have been hundreds of studies that have shown it to be safe and effective. There have been millions of women in the United States and even more millions around the world who have ended their pregnancies safely and effectively with this two drug regime. So, Nancy, our listeners will remember that in the FDA versus Alliance for Hippocratic Medicine, which the Supreme Court dealt with a few terms ago, there was another attack on mifepristone. That challenge was initially filed in Amarillo, Texas, in the courtroom of one Matthew Kazmarek. He's a judge, but he's also America's leading scientist on this issue.

1:20:53That is a joke as well. In that lower court ruling, Judge Kazmarek purported to revoke the FDA's approval of mifepristone, and then the Fifth Circuit rescinded some of the FDA's guidance for how mifepristone can be used, including guidance about what point in a pregnancy that mifepristone can be prescribed and whether mifepristone could be prescribed via telehealth. The Supreme Court unanimously reversed that decision, saying that the plaintiffs in the case, this was a group of anti-abortion doctors and dentists, didn't have standing because they hadn't established that the availability of mifepristone or the FDA's guidance on mifepristone had harmed them or was likely to harm them going forward.

1:21:33And that was because their theory of the case depended on a set of absolutely implausible events that were incredibly attenuated. But as we've noted before on this podcast, by reversing the decision on standing, the Supreme Court didn't address whether the Fifth Circuit was correct, that the FDA was wrong to allow mifepristone to be prescribed via telemedicine. So now, the Fifth Circuit has picked up the mantle in this new case that's been filed by a different plaintiff here at Louisiana. But Louisiana's theory of standing seems pretty attenuated too. So can you explain how the jurisdictional questions in this case are different from the case that the court threw out in 2024?

1:22:14Well, they're not. Louisiana doesn't have standing. I mean, they try to... Analytical reasoning, very hard in the Fifth Circuit, it turns out. They try to establish it in two different ways. The first is super, you know, attenuated, the claim that because they say two women who had complications from allegedly having an abortion with medication, abortion, appeared in hospital emergency rooms and were treated at some expense to the state. I think$92 ,000 was their claim. She tells you a little bit about how expensive health care is. But that is a very attenuated claim. We don't know where they got medication abortion.

1:22:57We don't have any idea whether they got medication abortion through telehealth and why that even matters. And so that's very attenuated. Then Louisiana comes in and says, you know what? Actually, here's the real rub. We can't effectively enforce our criminal ban on abortion because people are accessing medication abortion through telehealth visits and receiving pills through the mail. You know, the fact that Louisiana can't enforce its criminal statute is not a reason for standing to stop the entire nation from getting abortion pills safely and effectively. I mean, I was a prosecutor in the U.S.

1:23:42Attorney's Office in the Southern District of New York. I couldn't go to court and say, you know, I'm having problems, you know, enforcing this law and bringing this criminal prosecution. So I'd like you to knock down a few things in other states to make that a little bit easier for me. So, you know, it's an absurd position that they've taken and a very dangerous one. I mean, we have a lot of states in this country that support access to reproductive health care, access to abortion care. Their voters have, you know, put it on the ballot and said, hell yes, this is what we want. And in states where people would be surprised, like Missouri and Arizona and Michigan and Montana, and the voters in those states should not have their desires to have their state constitutional right to abortion overridden by Louisiana's problem with enforcing its abortion crime.

1:24:37I was also under the impression that federal law, not state law was supreme, such that if federal law was making it more difficult to enforce state law, not exactly a constitutional injury, even though the reverse might be true. But again, just a humble constitutional law professor here. So what, Nancy, did the Fifth Circuit do in this Louisiana case? And what effect would their ruling have if it's allowed to go into effect? What effect did it have when it was in effect for that weekend? Yeah. So the Fifth Circuit issued, the district court said, no, we're not going to block the telehealth provision that the FDA has approved.

1:25:19And the Fifth Circuit made this ruling that not only said, we disagree with the way the district court judged who would be harmed if an injunction was put in place. And we think that Louisiana should prevail here. We're putting in an injunction. We're doing it right now, immediately, and came out five o 'clock on Friday night. And that meant, you know, across, we represent, you know, clients across the nation. Those that do telehealth had to scramble and figure out what they were going to do. They had to have, you know, patients come in if they were scheduled for that weekend. And you can't, if you live hundreds of miles from the clinic, you can't just come in the next day.

1:26:02You might have to work. You have childcare. You may not be able to afford that trip. So it created absolute chaos and upending. And not just, I want to point out, and I was talking to a friend of mine in California over the weekend, and she said, well, this doesn't apply like in California. I'm like, this applies in California. OK, you cannot get a telehealth visit for medication abortion and pick it up at the pharmacy or have it mailed to you in California. Did not understand that was the consequence of it. So if this is not a wake up call to people across the nation, that it does not matter if your state protects abortion rights in your constitution, if your legislature protects it, if you have a shield law in your state that protects your doctors, doesn't matter if this kind of, you know, ill founded ruling is allowed to go forward.

1:26:55Yeah. So I guess just want to specifically follow up on this, because although the ruling was unsubstantiated, had no basis in law or fact, and, you know, is hugely consequential, mifepristone is still going to be accessible, you know, with this ruling if it's allowed to go into effect, as is medication abortion, even by telemedicine, even if it's not, you know, the currently approved protocol. So could you just talk a little bit about how this would affect the accessibility and availability of mifepristone and medication abortion? Well, I mean, to begin with, as I've been saying, it requires that you have to go to your provider in person to get the medication.

1:27:44And as we know, abortion clinics have closed in recent years. I think about a state like Maine, again, protects the right to abortion, but Maine Family Planning, which used to have 18 clinics throughout the state providing abortion, they had to close some of their clinics because of the defund Planned Parenthood provision that Congress passed. So if you have to drive a long distance and take time off of work and be able to get into that scheduled appointment, it's going to make it harder to get care. So that's why it's a big deal. That's why it's important. And again, it's nationwide. Nationwide.

1:28:23So, Nancy, I know that you know that our friend of the pod, Samuel Alito, really issued a win for abortion rights last week when he issued an administrative stay that provided a week for briefing and whatnot for the court to get its ducks in a row about this. But it also allowed Mifepristone to be distributed via telehealth for this period of one week while the court decided what it's going to do going forward. This means he's pro-choice, right? Well, Professor, I know you know. So many people have asked me, like, what should we make of this? Sam Alito doing this. He must know how wrong this is.

1:29:07Can you help us work through this? Help us teach the kids. Yeah, it's an administrative stay. It's just a procedural move to say, you know what? We will let parties file their briefs. We will, at a very short schedule, but we will let the parties file the briefs. We will read and think about the briefs. And, you know, Monday night at 5 p.m., the stay will be in effect. It's just a procedural move. It's what one would expect a court to do. when considering something as upending, as a nationwide invalidation of an agency determination about a drug's health and safety? And as our friend of the pod, a real friend of the pod this time, Steve Vlodek has reminded us, Justice Alito has, as the circuit justice for the Fifth Circuit, issued administrative stays before when emergency petitions have come before him.

1:30:05In many of those cases, in circumstances where I think he's inclined to agree with the litigants requesting the stay, he often doesn't put a deadline on the stay. But this particular ruling came with a quite short leash, which we should also remember. So don't worry, guys. No pussy hat for Sam just yet is what I'm thinking. That's – yes. Yes. But that makes me sort of want to get ahead of maybe another round of commentary along the lines that you were just kind of alluding to, Melissa. So this stay will expire. We're going to get a decision. So this is, again, an administrative stay. We're likely to get a decision on an actual stay within a day or two after this episode airs on Monday morning.

1:30:45So it's entirely possible that the court will order a longer term stay of the Fifth Circuit ruling. Nancy, what should we make of the court doing that? If we are not celebrating Sam yet, should we be celebrating him if that comes to pass on Monday or Tuesday? No, we should understand that there is a further procedural completely proper and should be expected. I mean, injunctions against federal agency decisions should not be quickly granted. And so it just means there's going to be more time for the court to consider it. Or hopefully that this will go back and go through a normal decision process and the court will consider it on the merits.

1:31:36But yeah, no one should read anything and go back to their business as usual. They should read all of this as deeply troubling. So listen to that, legacy media. Do not give Sam Alito credit for doing the absolute least. This is literally his job. No cookie for Sam. No cookie for Sam. Yeah. Okay. So, Nancy, another question. So can you maybe talk in general terms about what – so we don't know exactly if another stay will hopefully be granted if this case gets argued in the fall when the court is sitting again and the drug remains available over the course of the summer on the existing FDA-approved terms.

1:32:12But, of course, there's a lot of uncertainty both in terms of what the courts will do but also the FDA itself says it is undertaking this internal review of Mifepristone. So I think there's just like a lot that we don't know sort of about what the next few months will hold. So can you talk a little bit about how people can and should support abortion access during this like deeply uncertain time? And maybe I don't think we've really explicitly talked about this. So can you also talk a little bit about if mifepristone again becomes unavailable, at least in terms of telehealth, how people might be able to get a different protocol for medication abortion?

1:32:46Because medication abortion is, of course, possible without using mifepristone. So could you talk a little bit about all of that? Yes. And I'm actually going to go in reverse order to say that no matter what happens, if you are a person who is seeking abortion care, call a trusted provider. provider don't assume because you heard a podcast and you thought you understood that you just can't even get it or there's no way to get it via telemedicine. Call a trusted provider, find out what the situation is before making any assumptions. So that's number one. In terms of help, well, I will start with that.

1:33:21Support your providers. They're very important. They're on the front lines of providing care under incredible stress. Support local abortion funds. You know, in this post, they've always been important because so many states don't cover abortion care under their Medicaid programs or people are otherwise low income. There are abortion funds that help people get the care they need, help them travel in this post row America if they need to get that care. And there are usually ones in locales in every place in the country, or there's the national network of abortion funds. Talk about the issue. People are so misinformed.

1:34:00You're getting people calling you saying, what's happening to Justice Alito? Seems like he's being great on abortion. I'm talking to people who are pretty knowledgeable, but still say, wait, what do you mean it's going to be banned here in California too? Talk about it. It's been very hard to push through in this media environment around this crisis that we still have. We live in a country in which in some states, people are free to control their reproductive lives. And in other places, they are not free to do so. So we got to remind people of that every single day. We have the free and the unfree.

1:34:35And this case, Louisiana versus FDA, is the unfree trying to come after the rest of the state. So talk about it, get educated about it. And you do need to pick up that phone or send that text or send that email to your office holders, whether they support abortion rights or not. If they don't, They need to know there's people out there who do support it. And if they do, they always say to us, we don't hear enough. We don't hear enough. They got to, you know, you got to buck them up. You got to let them know we're out there and we want them to keep on going. So all those things are important. But talk, talk, talk, talk, talk about it because you know what's going to happen over the next months.

1:35:14We're going to hear a lot in the media about, you know, no one cares about abortion rights anymore. We hear it every single cycle. Well, on that note, listeners, make sure to make caring about abortion a thing in the upcoming election cycle and thereafter. Thank you so much, Nancy, for taking time out of your schedule to educate our listeners and explain what's going on and what we should do about it. Great. Thank you for having me. Thank you for covering it. OK, so some favorite things. Two new great albums released in the last week, Casey Musgraves' Middle of Nowhere and Muna's Dancing on the Wall.

1:35:53Also two New York Times pieces, also related to Voting Rights Act and what the Supreme Court did to it. Nico Bowie and Daphna Renanz, who will stand up to Supreme Court justices. And Jamel Bowie's John Roberts believes in an America that does not exist. OK, I will go next. Melissa, you recommended Yesteryear, I think, last week. And I read it. I devoured it. I felt differently at different places about it. It's actually not what I thought. It's not quite about what I thought it was or isn't quite what I thought it was. Which do you think it was? Well, it's just much darker. I mean, it's not – anyway, it's more – the premise is very straightforward.

1:36:28Trad Wife gets like time traveled back in time and like it's shitty back there. It's just much more complicated than that surface description suggests. But it's – I really enjoyed it. Okay, a couple other things. New York City mayors are on Mamdani doing the five-borow bike ride and all the video that emerged from him doing that. And then also skipping the Met Gala to hang out with fashion industry workers. I loved both of those. Friend of the pod, occasional erstwhile roadie of the pod, Chris Hayes, had a wonderful conversation on his podcast with Molly Crabapple about her book, Here Where We Live Is Our Country.

1:37:02I really recommend that. And another podcast to recommend, The Daily did an episode filled with kids' questions for the Artemis II crew. And the four of them are like the most amazing, charming, like spiritually elevated people. Like they are so impressive. And I love the questions and I love the conversation. So really recommend that. And then tonight I'm going, so I think it will be one of my favorite things, but I haven't done it yet, to the WNBA team in New York, the Liberty's home opener. And I'm taking three 12-year-old boys who are enormous Liberty fans, and I just like more fans of all stripes for the WNBA is like a thing I'm super excited about.

1:37:40I'm super excited the players have a much better deal this season. We've talked a little bit about the bargaining around that. So psyched for the opener, and I will pass the mic to you, Melissa. Okay. Mine are going to be super shallow. So I did not attend the Met Gala, didn't get my invitation, just waiting. but I did watch and I did have thoughts on some of the fashion. The theme this year was basically fashion as art and I don't know if I loved it or I love to hate it, probably the latter, but Lauren Sanchez Bezos deciding to dress up as the John Singer Sargent painting Madam X for which she spent a shit ton of money on a Schiaparelli dress that honestly made her look like she was going to the 11th grade prom.

1:38:28It was just basic. I mean, I don't even know what else. I also enjoyed the video of her and her friends watching Joshua Henry sing on the steps of the Met, and nobody could clap on the beat. I am going to relate this directly to the decimation of the Voting Rights act. I will also say I was very impressed and I loved, loved, loved the artist Amy Sherald. She was the one who did Michelle Obama's official portrait. She wore a custom look by Tom Brown that was inspired by her painting, Miss Everything, Unsuppressed Deliverance. And it was everything. Just I love the whole idea. Like I just love the whole fashion is art and people referencing these works of art.

1:39:12I wish some of them weren't so basic, but Amy Sherrill's was absolutely a plus. I will also plus one to Jamel Bowie's John Roberts Believes in an America That Does Not Exist in the New York Times, in part because he exhorts the American public to reclaim the Constitution as their own and to start making the same kinds of constitutional claims that the Supreme Court seems to do without any reference to the document itself. But you can reference the document because I wrote this book. So I like that Jamel Bowie and I are on the same page. Works for me. All right. Okay. So some housekeeping. Why does it seem like the Supreme Court always saves its worst decisions for June?

1:39:56Maybe the first gentle breezes of summer fill them with inexplicable rage. We cannot say for sure. Some of the rulings that may transpire include mail-in ballots, deportation protections, rules governing whether transgender athletes get to participate in sports, birthright citizenship, and more. So this June, the three of us at Strict Scrutiny are headed to New York City to break down all of the cases in question and whatever horrors the Roberts Court has in store for us, with judicial expertise and petty jokes at Sam Alito's expense in equal measure. Catch Strict Scrutiny live at the historic Gramercy Theater on June 20th as part of the Bad Decisions tour.

1:40:33Tickets are on sale now. You can grab them at crooked.com slash events. And in the latest episode of Runaway Country, I got to join my friend Alex Wagner to discuss a lot the outrageous selective indictment of Jim Comey, not for his off-brand whiskey production, but for – Moon shining Jim Comey. Documenting some art made with seashells on a beach. Maybe not by him. Probably not. Seems ostensibly not by him. no matter, right? He is being charged for it anyway. We talked about Trump's insane$10 billion lawsuit against the IRS and kind of generally why it matters when the Department of Justice is weaponized against the perceived political enemies and deployed to help the friends of those already in power.

1:41:20Yeah. I mean, like this week, feds raided the office of the black woman who led the Virginia redistricting effort. We didn't even get a chance to cover that. Like there is just so much. So tune in to Runaway Country, wherever you get your podcasts. You can hear me this week and you can hear Alex's great other guests other weeks. And you can also watch us anytime on YouTube.

1:41:43Struck Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, me, Melissa Murray, and Kate Shaw. Our senior producer and editor is Melody Rowell. Michael Goldsmith is our producer. Jordan Thomas is our intern. We get our music from Eddie Cooper and production support from Katie Long and Adrian Hill. Matt DeGroat is our head of production, and we are really grateful for our digital team, Johanna Case, Kenny Moffitt, and Eric Schutt. Our production staff is proudly unionized with the Writers Guild of America East. And if you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app and on YouTube at Strict Scrutiny Podcast so you never miss an episode.

1:42:20And if you really want to help other people find the show, please rate and review us. It really helps. ubng

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