The Lower Courts Punch Up

23:56Fix it, daddy. So what happened? The D.C. Circuit declined en banc review, which meant the government didn't need a stay in the Supreme Court since the D.C. Circuit panel opinion vacating the injunction stood. But, you know, the case went back down to the district court to figure out if the plaintiffs could challenge the government's actions on other grounds. And Judge Ali acted with astonishing expediency and care and said they could. So he rejected the administration's insane pocket rescission theory, saying it is impossible to square with the statute and that freezing funds requires action from Congress, not like a special message from the president.

24:32He also issued this footnote that called attention to the government's conduct in trying to, I don't know, get the case before the Supreme Court on an expedited basis where they could try to say the D.C. District Court, they're doing all this horrible stuff and making our life so hard. So, you know, the footnote said,

25:20for sanctions, honestly. It does make you wonder why the federal government thinks that it really needs to just go to the Supreme Court on an emergency basis to get what they want. I wonder. It's almost like they are manipulating and making up the facts. All right. Last update in the first portion of our news segment, big losses in the lower courts. We haven't actually had a chance to discuss yet, although it happened over a week ago, the federal circuit's ruling invalidating many of Trump's tariffs. In this case, seven of the 11 participating judges voted to strike down the tariffs at issue. These were tariffs announced in five separate executive orders, with the court finding these EOs unlawful and exceeding the scope of the president's authority under the International Emergency Economic Powers Act, or AEPA.

26:01These executive orders were predicated on declared emergencies, a number of them, one involving the southern border, one involving the opioid crisis, also referenced to trade imbalances as emergencies. All of these things the president claims represent a threat to the national security and economy of the United States. And pursuant to those, you know, announced emergencies, the president announced huge sweeping tariffs on goods from a number of nations. So in this opinion, this majority of the federal circuit found that IEPA just did not give the president the authority to issue tariffs like this, particularly given the major questions doctrine.

26:35Oh, snap. Four of the seven judges made clear in a concurrence that they don't believe the president has any authority under IEPA to impose the tariffs. The court remanded the case back to the Court of International Trade, that is the court, the lower court that the case arose from, to determine what the appropriate remedy ought to be here, making clear that its ruling would not go into effect until October 14th. And predictably, the administration has run to daddy SCOTUS requesting expedited consideration and November oral arguments. The cert petition, as you likely would expect, is icon-level crap.

27:15I'll just read, quote, The stakes in this case could not be higher. The president and his cabinet officials have determined that the tariffs are promoting peace and unprecedented economic prosperity. These tariffs present a stark choice. With tariffs, we are a rich nation. Without tariffs, we are a poor nation, end quote. It then goes on to quote Solicitor General John Sauer's letter to the Federal Circuit in which he declared that the United States, without the benefit of tariffs, are, quote, a dead country, end quote. Remember, we read from that letter and I was like, I cannot believe this is a Solicitor General, but at least, you know, it's a letter to the Federal Circuit.

27:56He hasn't found anything this crazy at the Supreme Court yet, but. Oh, no. Just you. Goalposts are moving really fast. And he'll literally recycle the same thing. Like he's quoting a letter he wrote himself. He was like, this is so good. I know. I'm going to take it out for another spin. I cite myself. Yeah. I'm also so glad we have our resident thespian back to do these dramatic readings because it just does not hit the same when it's not you, Melissa. So true. Thank you. I appreciate that. So, okay. So in this tariff ruling, Judge Toronto wrote a dissent for himself and three others arguing that the federal statute says the president can regulate in the face of an emergency and that the statute's prerequisites are satisfied here.

28:39Steve Vladek had a great write-up of this issue at 1 First Street in which he suggested that, you know, this case is going to be added to the docket as well as others. And this was already a very full term. And the addition of this plus now likely Alien Enemies Act, you know, the temporary protective status case, maybe a funding case, will be wild. And, yeah, that is going to be a very Trumpy term. Yes. Phew.

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31:05Now moving on to our next segment, in which we do a deep dive on all of the lower courts expressing frustration with SCOTUS. So first up, in the District of Massachusetts, Judge Young issued a heartfelt, or maybe it was just tongue-in-cheek apology to Justices Kavanaugh and Gorsuch for his inadvertent defiance of their fake and non-existent shadow docket opinions. I'm going to say it was tongue-in-cheek. I really feel like it's impossible. 50-50. Could be tongue-in-cheek. Could have been sincere. Wait, describe what he said. Yeah. Okay, okay. So Judge Young, for context, is presiding over the case involving the NIH funding freezes.

31:44And Justice Gorses, joined by Justice Kavanaugh, really went after Judge Young on the shadow docket, accusing him of essentially disregarding SCOTA's precedent and suggesting that he was part of an epidemic of lower court defiance. So Justice Gorsuch wrote this, quote, this is now the third time in a matter of weeks this court has had to intercede in a case squarely controlled by one of its precedents. All these interventions should have been unnecessary, but together they underscore a basic tenet of our judicial system. Whatever their own views, judges are duty bound to respect the hierarchy of the federal court system created by the Constitution and Congress.

32:25Personally, I think he should have just cited South Park. You will respect my authority. Also, I was just going to say, Neil Gorsuch is a messy bitch who loves the drama, right? Like he is making up this conflict. He decided he needs a plot line, right, in this season of The Real Housewives and whatever, dude. And we will have the clap back from Judge Burroughs momentarily, which was pretty epic. But so young in his very difficult to read response. So the case is back now before him, the case that engendered this, you know, kind of nasty. This bench slap, if you will. A bench slap. Yeah, from the bench to the bench.

33:01It's back before Young. And at a pretrial conference last week, he said, quote, it is incumbent upon me on the record here to apologize to justices Neil Gorsuch and Brett Kavanaugh if they think that anything this court has done has been done in defiance of a presidential action of the Supreme Court of the United States. He went on to say, quote, I stand corrected and those justices and the entire court can be assured that this court will absolutely obey the precedential decisions of the Supreme Court as I have done and tried to do throughout all my judicial service. Now, I made it sound a little snarky.

33:34I don't know what the tone was because I don't think we had audio. So, I mean, I do think the precedential decisions like might have been a considered choice. Well, and also as I have done and tried to do throughout. Right. Per my last email. And also, all my service, I'm pretty sure Young has been on the bench like way longer than Gorsuch and Kavanaugh. And so I think that probably wasn't, yeah, accidental either to like quietly invoke his decades of judging, like for reals. Like back when judging was more like a law thing. He's like, I'm not new to this. I'm true to this. Not unrelated is Lawrence Hurley had an absolutely stunning piece in NBC that included federal judges talking on background to journalists, basically shit talking the Supreme Court, airing their frustrations.

34:21Like judges, like one or two of them? No, like 10 of them. So a dozen federal judges appointed by Democratic and Republican presidents, including Donald Trump himself. Basically, Lawrence Hurley was Andy Cohen. And all these judges were like, it's time for the Real Housewives of One First Street. Like, you're a bitch, you're a bitch. Well, not even Andy Cohen. This is like when the Real Housewives talk to the press behind each other's backs and are like planting stories. That's more of this because, so 10 of the 12 judges said the Supreme Court, this is under the story, quote, should better explain those rulings, end quote, referring to the shadow docket.

34:57But, the piece continues, quote, they also have a new and concerning effect, validating the Trump administration's criticisms. A short rebuttal from the Supreme Court, they said, makes it seem like they did shoddy work and are biased against Trump. Then there are a range of quotes talking about how what the Supreme Court has done is inexcusable and going so far as to say they don't have our backs and somebody is going to die. Right. Talking about the escalating threats against judges and how the Supreme Court hasn't, you know, done anything to temper that. that. And they accused the court of, you know, assisting the administration in undermining the lower courts with, you know, some judges talking about them being thrown under the bus.

35:37And, you know, one judge made the helpful suggestion that the Supreme Court should say something like, quote, let's be clear, it's not some crazy opinion, and this judge is not a monster. Seems reasonable. To be fair, this was a story in which Hurley reported having talked to a dozen or so judges appointed by a range of different presidents. So there are Democratic and Republican appointees. And there were some dissenters among the group. So one Obama judge noted that the whole Trump derangement syndrome is actually a real issue. And as a result, judges are mad at what the president is doing or the manner that he's going about doing these things.

36:15And they are, according to this judge, sometimes forgetting to stay in their lane. Another judge also noted that the Supreme Court has an obligation to explain rulings in a way that the public can understand and that when the court frequently rules for the administration in emergency cases without fully explaining why they are doing so, it sends a strong signal. And, you know, the court has had strong left-leaning majorities in the past, but what's really different now is the role that these emergency cases are playing in the public discourse. I have some notes on these comments. What were those strong left-leaning majorities, plural?

36:54Yeah, I mean, this must be a really old judge from the 1950s. Right. I'd really like to hear more of this. But this story is stunning. It is so difficult to get judges to talk to reporters. Oh, 100%. The fact that so many of them did so and the fact that they were willing, again, to speak to them about concerns about the Supreme Court. I mean, that is a sign. We've talked about how Justice Jackson is sounding the alarm from inside the Supreme Court. These are other federal judges also trying to raise the alarm about what is happening with the Supreme Court. Yeah. So at the same time, the chief justice and actually through his counselor, like his chief of staff type, Robert Dow, who is actually also, I think, still a sitting federal district judge in Illinois.

37:41He was and then he became the counselor to the chief justice. But I do not think he's relinquished his seat. So I think he's technically still on the district bench. Wait, wait. How do we live in this world where people just have like eight different federal jobs? Like Marco Rubio, this guy, like. This is two. Rubio's got like five at this point. Yeah, it's this is bonkers to me. But whatever. But I do think it might be relevant here. So he, in a speech at the Sixth Circuit Judicial Conference, was at pains to clarify that the chief justice's criticism of rising threats against judges in his year-end report had nothing to do with Trump and that the chief justice really wanted to stay above the political fray.

38:24You're doing such a great job at that, John. Totally. You're doing great, sweetie. You're doing great. So Dow did apparently give a very sobering presentation about the rising threats to judges and, you know, did not downplay the seriousness or severity, but went out of his way to make clear that when the chief tried to draw attention to and raise alarm about this, he was not talking about Trump. And in fact, he drafted all of it before the election. OK. Okay. Anywho, I think the upshot of all of this, the theme, the through line that you might take from this is that I think the district court judges have had it.

39:01And case in point, we got a very important ruling from District of Massachusetts Judge Allison Burroughs. In that ruling, she found that the administration had acted unlawfully when it rescinded Harvard University's funding. And the bottom line is, she said, quote, It is difficult to conclude anything other than that the administration used anti-Semitism as a smokescreen for a targeted, ideologically motivated assault on this country's premier universities and did so in a way that runs afoul of federal law. She sided in the main with Harvard's claims that the administration's funding moves had violated the First Amendment, as well as Title VI of the Civil Rights Act, and were arbitrary and capricious under the Administrative Procedure Act.

39:45Okay. So the clapback that we referenced a couple minutes ago came in just a hell of a footnote in which I think Judge Burroughs spoke for the— Footnote nine. A lot of judges are using footnote nine. Exactly. And by footnote four, Kate's referring to footnote four of Caroline Products, which is referred to as the most famous footnote in all of constitutional law. And Judge Burroughs has really given that a run for its money. It's really quite an epic footnote in which she really does kind of seem to be speaking for the entire lower federal judiciary. And it's actually so good that I think we're going to read it in full, although it is long.

40:17So we will just break it up and take a listen. Footnote 9. The court is mindful of Justice Gorsuch's comments and his opinion in APHA and fully agrees that this court is not free to defy Supreme Court decisions and is, in fact, duty-bound to respect the hierarchy of the federal court system. Consistent with these obligations, this court and likely all district courts endeavors to follow the Supreme Court's rulings no matter how misguided it may think them to be. That's the quote of a Supreme Court opinion. Actually, it's not just her words. She continues. That said, the Supreme Court's recent emergency docket rulings regarding grant terminations have not been models of clarity and have left many issues unresolved.

40:53California, that's an earlier case, was a four-paragraph per curiam decision issued in the context of a stay application. It cited Bowen as good law, stated that the Tucker Act gave the Court of Federal Claims jurisdiction over contract claims against the federal government, and then stated that the district court likely lacked jurisdiction to order the payment of money under the APA without purporting to explain how the case was distinguishable from Bowen or other related longstanding precedents. The library is open because that was an epic read. And she's not done. She's just getting started.

41:26She's limbering up. There's more. It's a marathon, not a sprint. It continues, quote, then in APHA, four justices thought grant termination cases belong in full in the court of federal claims, and four justices thought they belong in full in federal district court, and the decision was controlled by the vote of a single justice. The outcome, which no party had requested, was thus inconsistent with the views of eight And again, provided little explanation as to how Bowen, which the controlling concurrence again cited as good law, applied or was distinguishable. TLDR, what the fuck are you doing?

42:07And once again, she's not done. The footnote continues, quote, this court understands, of course, that the Supreme Court, like the district courts, is trying to resolve these issues quickly, often on an emergency basis, and that the issues are complex and evolving. Given this, however, the court respectfully submits that it is unhelpful and unnecessary to criticize district courts for defying the Supreme Court when they are working to find the right answer in a rapidly evolving doctrinal landscape where they must grapple with both existing precedent and interim guidance from the Supreme Court that appears to set that precedent aside without much explanation or consensus, end quote.

42:46Middle finger to all the haters. Okay, we're finally done. Yeah. Oh. I was not familiar with the game. I now am. Well, I just, I mean, like, this was like, I'm sorry, you must not know about me. I'm not the one and I am not the two. Yeah. I just want to underscore, you know, this and the NBC story, I love, right, like highlighting, you know, what the district judges are doing. But like, it is significant because the fact that they are willing to go out on these limbs is a sign of just how messed up and bonkers the Supreme Court is. I mean, Judge Burroughs is, you know, the kind of very centrist, middle of the road judicial nominee that Democrats appointed, right?

43:31She is not some progressive warrior. She's like a U.S. attorney partner at a law firm, right? She's not some movement conservative lawyer, right, of the kind that Republicans appoint to the bench. And again, the fact that they have pushed these judges so far is really an indication of just how out there they are behaving. There is so much of this Burroughs opinion we could read. I wanted to include this, which I felt like was very subtle shade as well. And I, well, I appreciated it. Subtle? Subtle. A little more subtle on the footnote, which wasn't subtle at all. Right, exactly. So this excerpt was a callback to Justice Jackson's dissent in that National Institutes of Health, you know, APHA case, when Justice Jackson had said this, which she was describing the Supreme Court's work, is Calvin Ball, but with a twist.

44:25Here is Judge Burroughs. It may well be that these differences would not distinguish these claims in the eyes of the Supreme Court, although that remains unclear under existing case law. But this is not Calvin Ball and there are rules. Basically, I'm doing the law thing. You guys aren't. It's not my job to predict what crazy shit you all are going to do and come up with a justification you can't even bother to come up with on your own. Yeah. Yeah. Okay. So, and now, speaking of the galaxy brain geniuses on the Supreme Court, we will now talk about recent appearances by Brett Kavanaugh, who spoke at the Sixth Circuit Judicial Conference, as well as Justice Barrett.

45:10So, Justice Kavanaugh announced at the Sixth Circuit Judicial Conference that he has figured out how to fix the shadow docket. I'm listening. The solution. I'm listening. Call it the interim docket. Yeah. How long do you think he had to workshop that until he got to it? Honestly, probably the last 18 months. I wonder if he had lists. Do you think he had a lot of lists of candidates that he's been like marking up and this is when he decided? Yes, definitely. I mean, you know, while we're at it, like, why not call it the we're perfect, we're beautiful, we're Linda Evangelista docket? Like, then there would definitely be nothing to criticize.

45:48Like, I have my own suggestions, right? like shadow doctor shit show or go to shit posts. So his point is just sort of like, we're just riffing here. Like call it the inner, like all of this could change. Nothing is permanent. It's just kind of the purgatory docket. Well, he basically goes on to say that. So listen, it gets worse actually. So he's not only saying like, if we label it something different, maybe people will be nicer to us. He kind of like gives the game away. So this is like the latest installment of the kind of Brett Kavanaugh can't help telling on himself like series because his remarks included the following admission.

46:22He says the shadow docket, nay, the interim docket, orders are cryptic because five of them can't, quote, reach a consensus or a compromise on a particular issue that might be difficult. So he says that, like with his mouth, he says that. Well, and it's just like how are lower courts supposed to figure out your secret reasons, right? And among all of your different secret reasons, figure out which ones are controlling because if there is no majority, like you have to pick the narrowest one and you're not even told what any of their reasons are. But if you guess wrong, you'll be screamed at by Gorsuch and Kavanaugh.

46:58Yeah, this had big like, oh my God, he admit it energy, like the meme. If you don't know it, just Google that image and that's Brett Kavanaugh. If Justice Kavanaugh is accepting other suggestions for what we might call the shadow docket, I'm going to offer respectfully for his consideration the following. How about the Dionne Warwick psychic friends docket where you basically just divine what they mean by using by calling the psychic friends. I like Dionne Warwick too much. So I would go with Mistress Cleo or something like that. I think I think that works. I mean, it's basically what he's saying.

47:38Like, yes, it could all change at any point. Just you got you got to follow the vibes. You got to be in tune with the vibes. Yeah, you just got to be vibing out with them. Just do the vibe check, right? And that's how it will go. Don't harsh the mellow. Stop asking big questions. Right. And I just want to say part of what makes, you know, the Gorsuch-Kavanaugh tirade against district courts, you know, now laundered through Kavanaugh's meaningless civility feints so appalling is that a mere four years ago, one Samuel Alito was lecturing people about how shadow docket actions and orders aren't precedential.

48:17So we don't have actual audio of those remarks from his speech at Notre Dame because the speech is not on the Internet. But happily, I wonder why. Still free-ish press, right? Write-ups of it are still available. Kavanaugh is like a perfect encapsulation of civility means I can say anything I want about you and you have to take it on the chin and smile and tell me what a nice guy I am. Yeah. Also just returning to his struggles, like you can't count to five. You know, I vaguely recall Samuel Alito telling us that the entire disciplining force of appellate courts was working with and finding agreement with your colleagues.

48:53Like, that was part of his rant against district courts in the birthright citizenship case. And yet Kavanaugh says, quote, consistency is a lot easier when it's one person than when it's nine, end quote. And it's like, he's like, well, yeah, anyways. Well, he did say, and I think this is true, he was like, we can do better. And I was like, that's right, you could. Accurate.if. Want to see some returns on that, but... I mean, he's not wrong on that part. Acknowledgement is an important early step. So I guess we do have to give him a tiny grain of credit. True. Okay, just a couple more things to cover.

49:28Exciting news. Justice Barrett has begun her press tour for her forthcoming book, which clearly seems designed to cause Leah to pull out every hair on her head. CNN had an early report. It sounds as though in this book Barrett defends overruling Roe with some recycled talking points about letting the people decide. We really implore Justice Barrett to keep this in mind when she is asked to strike down the Voting Rights Act. She also invokes the tired trope that RBG criticized Roe, ergo it was fine for them to overrule it. Melissa and I, I think, take on both of those arguments in our Dobson Democracy article in the Harvard Law Review.

50:08But just suffice to say, we don't find them convincing. She also defends what I think might be described accurately as creptastic decision making. So here's a quote. Before I joined the court, I was sometimes frustrated by an opinion's cryptic language or its failure to resolve fairly obvious points. Now I better appreciate that glossing over the issues is often deliberate. This is some real Brett Kavanaugh energy, ma 'am. Like, we're doing it on purpose. We're being cryptic and opaque on purpose, and you'll enjoy it. But you lower courts, you have to know what we mean. In all of our opacity. Correct.

50:51Yeah. She really seemed to be on the same page as Coach Kavanaugh because she also made an effort to defend the shadow docket. Quote, as long as litigants continue filing emergency applications, the court must continue deciding them. End quote. Like, look what you made us do. Also, nothing tells you you have to grant them if you can't fucking agree on a rationale. Maybe they haven't shown they're entitled to extraordinary relief. It seems so obvious, and yet they're not. And yet it escapes them. Justice Barrett did take the time to savor some of the big wins. She wrote how, you know, one time when other justices quickly joined a particularly tricky opinion of mine, her chamber celebrated with impromptu champs.

51:35Which opinion was she celebrating? We don't know. I think it's Vidal versus Elster. Could be. The Trump too small case. Yeah. I love saying that. Just for those who don't remember the name. It is fun to say. It's fun to say. I was thinking about it. The timing doesn't work for it to be her majority opinion in Casa, but like the villain energy would just be boundless if she is, you know, she's popping the champagne cork to celebrate removing a key vehicle for vindicating court constitutional rights for babies, for literal babies. But I don't think it was that one. She had a weird computer fraud and abuse act majority early on.

52:09I forget the name of that case. That was Murthy versus Missouri. Oh, but that was such a weird opinion. I don't know. Anyway, there's more. What about Howland versus Burkine, Indian child welfare act? Oh, yeah. Maybe. I guess she can get a little champagne. I grudgingly don't mind her having champagne because that dodged some really terrible bullets. Well, you assume that's the one she cracked open the bottle for. Yeah, if she did. Yeah. Yeah. So. I'm going with Vidal versus Elster. Okay. Could she toast? Wait, who? I'm trying to remember. Did the Trump too small guy? I think he lost. So she'd be toasting the president, toasting the inability to mock Trump's small hands.

52:51Yeah. That's how much it checks out. Yeah. No, this checks. Yeah. That's what I'm going with. Anyway. All right. All right. Justice Barrett, it should be noted, decided to launch this particular book by giving an exclusive interview to noted journalist Bari Weiss. And subscribers to Weiss's Free Press had early access to it in a big event. So there are some highlights. We are not early access subscribers, but we did manage to get a readout on this interview. So here are some highlights. First up, if you were worried, rest easy, folks. Justice Barrett assures us that we are not in a constitutional crisis.

53:30She says, quote, I think the Constitution is alive and well. I think the country remains committed to the rule of law. I think we have functioning courts. Okay, girl. Okay. Functioning lower courts. But we have to talk about the lightning round, right? So at this lightning round, Weiss asked Barrett to describe each of her colleagues with one word. Should I? Melissa, do you want to do the math? Let's go through the answers. All right. You be Bari Weiss and I'll be Scott. Okay. I'll feed you the justices. Okay. Roberts. Chief. Thomas. Laugh.

54:10Oh my God. I want us to do one. Sorry. Okay. Sorry. Let's stay on track. But at some point we need to do our own one word descriptions of them. But okay. Back to Barrett's. Alito. Grandfather. My eyes rolling so far back in my head. Sotomayor. Lively. Kagan. Analytical. If you're not watching this on video, you are missing an Oscar worthy performance by one Melissa Murray. Yes, it's true. Gorsuch. Out West. Oh, wait, that's two words. That's two words. My bad. All right. Kavanaugh. Sports. Jackson.

55:04Actor. Broadway.

55:14Anyway, where to even start with this? I mean, I took her comment about Alito to basically be like retire bitch. You know, you know, the grandfather reference. It's obvious. That and the Epstein files is really the bipartisan consensus that we've all been waiting for. Yes. Yeah. Yeah, you know, the obvious, I don't know, disdain, like lack of respect, right? She showed her junior most colleagues. To be fair, I may have laced that with more disdain. Like, I didn't listen. Well, it was reported as having a long pause, right? And comparing that with what she said, right, about the other justices, I don't think it is unreasonable to infer from that.

56:03Right. Like a lack of respect for her colleague. Right. Who is doing a better job than anyone. Right. At exposing and calling out the Supreme Court's bullshit. I will just say, you know, so she for listeners who don't remember this, she did a very brief cameo in the And Juliet production on Broadway. And I presume. She being Justice Jackson, not Barry White. She being Justice Jackson. OK. No, nor Amy Coney Barrett. No, this is Justice Jackson. They could never. No. and Scalia and Ginsburg used to do cameos at the opera all the time. Like not even cameos, like actually played little roles. I mean, cameos, I guess.

56:40But like this is the thing they did. They got dressed up, they got on stage, they did a little opera. It's not that big a deal. It made me wonder whether in like the right-wing media ecosystem that Barrett, I think, inhabits, they were like, it was so improper. She like went to Broadway and she shouldn't have done that as Supreme Court justice. and Anne Juliet is like a kind of reimagining of Romeo and Juliet. There's like a young woman of color who plays Juliet. Juliet's like this empowered character who like doesn't offer self in, you know, lovelorn sort of crisis and it's, and there's like a non-binary character and like it's a play that I can imagine like the right-wing ecosystem being like mad at and I didn't know they were but there was just so much in that like that's the thing that sprang to mind in like this, these three years of like fierce descents and invocation of like reconstruction thinking and history into constitutional jurisprudence.

57:33Like she's like, I thought about this cameo in like this jukebox musical on Broadway. It was just like just so wildly like belittling, you know. One more quick thing. We often celebrate, obviously, on this podcast and people elsewhere do as well, like Justice Jackson being willing to talk about what the Supreme Court is doing. But I think part of what this Barrett thing reveals is, like, there are costs, right, for people, right, who are putting themselves out there to draw attention to what is happening. And I don't think, like, the Republican justices and the Republican kind of ecosystem will forget that Justice Jackson has done this stuff, right, a few years down the road, even as or if, like, people who support her do.

58:24And I just, I feel real like sympathy and empathy for her, like having heard this as well. I think the way she can deal with this is to basically do what Justice Ginsburg did and invite one of her conservative colleagues to join her in her next Broadway cameo. And my suggestion would be for Justice Gorsuch because he's giving such frustrated theater kid vibes. Like he wants to do it. So just like, like bring him along. Let him be Romeo. Like little sing, little dance. It'll be fine. And then they can't, then she's insulated. I'm going to skip that performance. Yeah, she's insulated. Yeah, that's good.

58:56Good advice. Somebody get KBJ this advice stat. A little Broadway, buddy. Exactly. So that's all for this new segment. We will be back shortly with our interview with Justin Driver about his new book, The Fall of Affirmative Action. But first, you've probably heard us mention Crooked Con over the last few weeks. But if you haven't, Crooked Con is your chance to join some of the smartest organizers and least annoying politicians in America to strategize, debate, and commiserate about where the pro-democratic movement goes from here. Hopefully up. We've been lightly hinting that we'll be there, but today we're excited to share.

59:32Strict Scrutiny will be closing out the event with a live show at The Wharf. To come see us, get your Crooked Con tickets at crookedcon.com. The ticket will give you access to the full day of conversations, panels, and workshops. Get your tickets before they sell out, and they will sell out at crookedcon.com.

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1:02:29We are delighted to be joined today by Justin Driver, the Robert R. Slaughter Professor of Law at Yale Law School. We're huge fans of Justin's first book, The Schoolhouse Gate, and we're excited to talk to him about his important new book, The Fall of Affirmative Action, Race, the Supreme Court, and the Future of Higher Education. It pulls off one of the most difficult combinations in being both accessible and nuanced. Justin, welcome to Strict Scrutiny. Thanks so much. I'm really glad to be with you all. Okay, Justin, let's dive right into this triple sow cow, the perfect combination of accessibility and nuance.

1:03:04The book traces how the Supreme Court's June 2023 ruling in Students for Fair Admissions versus Harvard and the University of North Carolina dismantled four decades' worth of precedent that had credited the limited use of race in higher education admissions. You describe SFFA as, quote, the most significant judicial opinion involving race in education since Brown versus Board of Education invalidated segregation seven decades earlier. But you also observe that, quote, despite its significance, SFFA remains profoundly misunderstood. Can't agree. Let's start with that. At its core, what did the court say when it decided SFFA?

1:03:44And how has the decision been misunderstood, mischaracterized, or manipulated in today's landscape? Yeah. So the SFFA decision eliminating affirmative action was cataclysmic, deeply misguided in my estimation. It also did not sweep nearly as far as the Trump administration is attempting to suggest that it's swept. That is to say, Chief Justice Roberts' opinion says that what's forbidden for universities to do these days is to consider race qua race. Those are the three most important words in the opinion, race for the sake of race. Universities have interpreted this to prevent them from accessing racial boxes when they are considering applications, and that would be race qua race.

1:04:39There are other things that might fall into that category. What remains permissible for universities to do, though, is to make decisions with an eye toward increasing racial diversity. That is not prohibited, even though the Trump administration sent out a letter on February 14th of all days. Happy Valentine's Day. Yeah, exactly. saying if a university decides to say, get rid of standardized test scores with an eye toward boosting racial diversity, that's prohibited. That claim is belied by the SFFA versus Harvard opinion. I think it's so important, by the way, to begin where you began, because it has led to a profound downfall, a plummeting of black enrollment at our nation's finest universities.

1:05:34Okay, so we definitely do want to come back later in the conversation to these kind of on-the-ground consequences of SFFA. But maybe to take a step back first, as I think kind of the opening characterization noted, the book is like both very practical and also theoretical, conceptual. So maybe let's kind of start with what you are arguing about the opinion's understanding of equal protection and how it both either breaks from or draws on earlier strains in the court's equal protection jurisprudence, right? Because just, you know, for our listeners, right, what the court says is the equal protection clause forbids universities to do something it characterizes as using race qua race.

1:06:11So basically, I guess maybe I'll ask you to talk a little bit about your earlier article, The Strange Career of Anti-Subordination, which you use in the book to kind of highlight how equal protection doctrine and higher ed admissions policies have long reflected this deep tension between two competing interpretations of equality, right? So on the one hand, anti-classification, that is like the Equal Protection Clause forbids government to ever classify using race. And then the other, anti-subordination, something like the idea that what the Equal Protection Clause outlaws is government furthering racial domination, subordination, hierarchy, but it doesn't forbid all action by government that uses race.

1:06:53So can you say more about those labels and categories and sort of how they operate in your view in the SFFA opinion? Sure. To begin where you began, SFFA does mark a sea change. The Supreme Court of the United States had repeatedly considered affirmative action and its constitutionality and repeatedly upheld it, often with ambivalence in Bakke itself, in Grutter in 2003, and in the pair of Fisher cases. Nevertheless, the Supreme Court had repeatedly said that it was permissible for universities to consider race qua race. The traditional divide in the Equal Protection Clause is exactly, as you say, between anti-classification on the one hand and anti-subordination on the other.

1:07:44And the SFFA opinion is notable because Justice Thomas uses the term anti-subordination the first time that that's ever appeared in the U.S. reports. A little bit of Princess Bride. I'm not sure you know the meaning of that word, but, you know, anyways, footnote. Or maybe he does. Or maybe he does. It's a fascinating move that he makes. Justice Thomas says, I am, in effect, an anti-classificationist, not an anti-subordinationist. But he routinely speaks in the register of anti-subordination. One of his defining moves, and we should understand him as a constitutional theorist, I believe. One of his defining moves is to say that the problem with affirmative action is that it does subordinate black people.

1:08:35that it suggests that black people left to their own devices are not capable of achieving. This is predicated, he says, on a notion of black inferiority. That is classic anti-subordination rhetoric. And so what I was trying to do in the strange career of anti-subordination in this book, The Fall of Affirmative Action, is to say that the story is more complicated than the one that we learned in law school, that liberals believe in anti-subordination and therefore affirmative action is A-OK, and conservatives believe in anti-classification and therefore affirmative action must fall. But with respect to liberals, many liberal theorists have said that affirmative action does subordinate.

1:09:22That is to say, Derrick Bell, the founder of Critical Race Theory, says that affirmative action can be understood to envelop racial minorities in a cloud of suspected incompetence, he says. Randy Kennedy, Stephen Carter, and many other people have spoken in this register. So in that part of the book, I am attempting to engage my colleagues here at Yale Law School and throughout the academy who say, well, anti-subordination means affirmative action is A-OK. And I do try to, of course, weave in the litigants at issue in SFFA thinking about Asian Americans and subordination and how it plays out with respect to that group.

1:10:02As you note, critics from both the left and the right of affirmative action have drawn from this anti-subordination theory to raise challenges to affirmative action. And, of course, when you are talking about the badge of inferiority that they allege is stamped on minority applicants as a result of affirmative action, it calls to mind this kind of infamous part of constitutional law in Plessy v. Ferguson where the Supreme Court denied that separate but equal segregation resulted in a badge of inferiority on black individuals. And I just wondered, you know, in thinking about like these two claims about what produces badges of inferiority and how, you know, when I think about ways in which or possible ways in which affirmative action might lead to a badge of inferiority, it seems to, in my mind, be drawn from a premise that almost assumes that black and brown applicants don't belong and are less qualified.

1:11:03whereas, right, like it's not necessarily the result of the policy itself. It's like the combination of the policy and social facts, namely. The Stephen Miller response is like the perfect tell on that. So, you know, after SFFA is decided, Stephen Miller's America First Legal Foundation sends out these letters to all of the law schools saying that there will be legal action if they're not compliant. But the question is, what would constitute compliance? What would be the evidence of compliance? And it's very clear. enrolling not as many black and brown students. Right. And that's not about, I mean, that's not affirmative action.

1:11:38That's racial hierarchy. I mean, I think you could look at it at places where affirmative action had been eliminated even before SFFA. So I taught for years at the University of California, Berkeley, where affirmative action had been eliminated through a voter initiative in the 1990s. And, you know, I still had students, black students who said, you know, I think my white colleagues think I don't belong here. And I'm like, well, why would that be? Like, we don't have affirmative of action. Well, I think it's because of the tenacity of racial superiority. Yeah. I think that's exactly right. Edward Bloom, the founder of SFFA, has gone around and said, in effect, we should be happy about Black students at MIT falling from 15 percent of the class to 5 percent of the class, because that 5 percent of Black students, they will know they made it in through the front door and they should have their heads held high.

1:12:30I think Melissa's exactly right. The experience of California is instructive here. When students at UC Berkeley who were admitted decades after California got rid of affirmative action say that they are treated as lesser than by their classmates, they're not invited to join study groups. Indeed, they're not even believed to be students at UC Berkeley. There's a phenomenon people refer to as, you know, sprawling while black, being on Sproul Plaza. Sproul, Sproul, Sproul. Sproul Plaza, pardon me. Thank you so much. So they are, you know, walking around the plaza and they're not being handed out the leaflets because people believe that they're not students at all there.

1:13:13If you're being black, it means you're not a student. And I think that you all are exactly right. The Trump administration here is being motivated by an idea that there are too many black students on elite college campuses. That is the driving impulse. They are now trying to sort of seize university data. And they believe that there are just too many black students on these elite college campuses. Can I just note how insane the double standard is there? because they are saying, right, efforts to increase racial diversity, right, are improperly like motivated by race. And yet their efforts, right, to reduce the presence of minorities on campus, that's somehow a permissible motive.

1:14:00It's just, anyway, sorry. No, it's a really important point. I've been talking with a wonderful student of mine here who has been pushing me on this issue. For a long time, conservatives think of, you know, a horrible thing in the area of race is racial balancing. This is the boogeyman. We can't have racial balancing. That's a disaster. We can understand the Trump administration as engaged in a type of new racial balancing, to say that if the numbers don't fall, then there is evidence of malfeasance somehow. So it's a very distressing time. So the book is focusing principally on the Supreme Court's shifting visions of affirmative action and permissible uses of race in the context of affirmative action.

1:14:51But it is worth remembering that affirmative action actually begins in the executive branch through a series of executive orders launched by the Kennedy administration that was focused on integrating the ranks of federal contractors. And when those EOs were launched, they were explicitly remedial and reparative, which is to say they were meant to compensate for a very long history in which racial minorities had been excluded from the ranks of federal contractors. And at least initially, and at least until the Supreme Court intervened in Bakke, remedial or reparative interests were a big part of the underlying ethos of affirmative action programs and permissible.

1:15:32Bakke intervenes and suddenly diversity becomes the cri de corps for affirmative action programs. I guess I'd like for you to sort of tease out what is gained or lost in the jurisprudence and on the ground when diversity becomes the watchword for affirmative action and the ethos that underwrites affirmative action. Yes. So Justice Powell's opinion, the controlling opinion in 1978, says expressly that racial remediation is not meant to be the justification for affirmative action, that that is impermissible. Instead, elevating the Harvard College model that said that a farm boy from Idaho brings something to Harvard College that a Bostonian cannot, so too with a black student in comparison to a white student.

1:16:24You know, the belief in diversity, although it may have started as an effort to offer a palatable solution, one that could sort of gain credence and acceptance, did become quite ardently believed on universities. I think that they pledge allegiance to diversity in intense ways. I wrote a study a long time ago now with some empirically minded scholars trying to revive the diversity rationale. I know that many people dislike it, but we examined the adoption of diversity policies on law reviews. This is at a time when law reviews were being sued because of their racial composition. And we looked at the effect of citations before and after the adoption of diversity policies to see what would happen.

1:17:21And we found that the adoption of diversity policies actually increased citations by 25 percent, a statistically significant figure. So one of the difficulties in SFFA is Chief Justice Roberts says, well, how do we really know how to measure diversity? This is impossible to measure, ignoring our article in the Columbia Law Review right before his eyes. So I think that this idea that diversity is just impossible to measure, there's no metric, Justice Alito says, I think that's mistaken. So I was actually thinking, I mean, I agree with you, like the whole idea that you cannot measure diversity, that seems to be wrong-handed.

1:18:04I actually was thinking about some of the arguments that people of color have lodged against diversity that, you know, why don't we think about this as remediation or a reparative interest? Like we were shut out of institutions like the University of North Carolina for many, many years. And this is an opportunity to correct that. And the downside of diversity is that it gives credence to the idea that Black people or people of color are there only to ensure that white people have optimal educational outputs or outcomes. And I think that's concerning. I mean, I've talked about this with my own constitutional law class as a parent.

1:18:44Like, that's not why my kids are in school. So white kids get a good education. I'm there for them to get a good education. And so, you know, is there something lost at a granular level when we refuse to acknowledge or grapple with a history where there has been profound exclusion and maybe there is an interest in remediation or repair? That point is quite well taken. The notion that black students are there to educate others or as sort of window dressing, that seems like quite a powerful objection. I will say that one of the sort of ironies of the SFFA opinion is that it may open the door to revisiting racial remediation because of originalism.

1:19:32And this came up during oral argument. What does the conservative originalist do with respect to the Freedmen's Bureau? After all, that would seem to be rather strong evidence, contemporaneous evidence, that efforts to aid black people pass constitutional muster under the 14th Amendment's Equal Protection Clause. Justin, you just ignore that part. That's the history and tradition that you can just put aside. It doesn't work. No, no, no. No, no, no. No, no, no. They don't ignore it, actually. Justice Thomas says in his concurring opinion, the Freedmen's Bureau, that wasn't about race. Parenthetically, every significant historian thinks that's like crazy that freed persons was synonymous with black people.

1:20:16But just take that for the moment. He says that wasn't about race. Instead, that was about the status of having been an enslaved person. whereupon Justice Kavanaugh during oral arguments said. But that means that preferences for the descendants of enslaved persons, also that would not be a racial category. So one of the proposals that I make in the book is that universities should contemplate adopting preferences for the descendants of enslaved persons, which would go back to, in many people's minds, the strongest justification for affirmative action about historic injustice and the legacy with us today of that injustice.

1:20:59But many conservatives have suggested that this is constitutionally possible, including Michael McConnell, David Bernstein, and other people associated with the Vala conspiracy. They're invited to the cookout. They're invited to the Mayflower when the Federalist Society holds its convention. And so I think that this is an exciting idea. I hope that universities will take it seriously. Just want to pause to remind you that during oral argument, Patrick Strawbridge, when fielding that question from Justice Kavanaugh, noted that slavery was too closely correlated with race for that to work. And we remember, ladies, we said, why would that be?

1:21:41Why would slavery be so closely correlated with race? That point is very well taken. And at the same time, if one takes seriously SFFA versus Harvard and that what's forbidden is race qua race, that is not a racial category in modern America. That is to say that there would be black people who would fall into the category of descendants of enslaved persons and also plenty of black people who would not fall into that category today. So I, of course, am completely committed to the proposition that slavery and race are deeply intertwined in American history. You don't have to convince me on that front.

1:22:23But, you know, there are lots of relatively recent immigrants to the country who would not be understood to be descended from the slave persons. So we are now in a new era when it comes to affirmative action. and we wanted to talk about some of the practical. You know, we've already talked about how you have suggested that, you know, people on the left who embrace the anti-subordination theory have failed to grapple with how, like, affirmative action might implicate their theory. And in your book, which is also expanded in your recent New York Times op-ed, you similarly observe that with respect to the other side, quote, conservatives have often excoriated affirmative action because they argue it makes racial minorities see themselves as victims, end quote.

1:23:06But the irony of SFFA decision is that, as you write, quote, Robert's opinion promises to intensify victimizing narratives. How did Robert's opinion create the conditions for this or a potential trauma dumping fad? And what does that imply more broadly about SFFA's inability to achieve its intended ideals? Yes. So conservatives have long had affirmative action in their crosshairs. It seems to me that they have done an inadequate job of contemplating the new regime that was going to replace the old regime. And so with respect to victimization, which Shelby Steele and many other conservative commentators have said affirmative action heightens victimization.

1:23:51I actually think that this decision, SFFA expressly says that it's permissible for applicants to write essays that sound in moves of racial discrimination, inspiration or otherwise. And so this is a new world. Under the old regime, a black applicant like myself could check the black box and then write an essay about why I wanted to study, you know, Proust or Plato or string theory or anything else. And under the new regime, because universities are prohibited from accessing the racial boxes, people are strongly incentivized to write essays about their brushes with racial discrimination. and that narrative is going to become deeply embedded in the students who are polishing their essays over time.

1:24:46This is not something just checking a box. It requires numerous revisions. And of course, it's going to trouble this conservative idea that the nation has witnessed enormous strides toward racial progress. This is something that's very important for Chief Justice Roberts and his conservative colleagues as evidenced by the Shelby County decision. But here, students are going to be incentivized to say, you know, this horrible thing happened to me. And this is evidence that the nation hasn't gone as far as people would like to believe. And so here I am trying to channel conservative argumentation and take their professed ideals seriously.

1:25:26And I would say that a similar phenomenon could be found with respect to their mismatch idea. I personally don't believe that mismatch is a significant thing. But they say that it is a big deal. And I believe that this decision could heighten the mismatched concern. So the point you just made about this new landscape giving students more opportunities to really kind of flog their victimhood, like, you know, a new sort of oppression Olympics in the essay section of the application process. This was the subject of your recent New York Times op-ed. And I think it was very compelling. I wonder what you would say about that theory in light of the recent directives from the administration that universities share their admissions data with the DOE going forward.

1:26:13Because it would seem that that sharing mechanism or that requirement to share data would be a really strong deterrent to universities to admit only students with the right kinds of metrics. That is to say, really good GPA, really good test scores, and leave aside those students who may be on the bubble but who write really compelling essays and compelling for whatever reason. So do you still think, given this new landscape where schools are going to be obliged to share their data in very explicit ways with the administration, that the same concerns about the essay and the prospect of victimology are as acute?

1:26:50Listen, if I were offering advice to a high school senior, I would encourage the student to write the essay that they believe is going to enhance their chances. And very importantly for me, I really want to make it clear that there's a lot of misunderstandings here. I write about in the essay that you all have been mentioning a student from a poor part of Atlanta, an African-American student, DeMar Goodman, who was under the misimpression that SFFA said you can't talk about race any longer. And that's exactly wrong. So it's not that I would say people shouldn't do it. but I want them to be aware of the consequences of this new regime.

1:27:33And with respect to the sharing of the data, I was deeply troubled by Columbia and Brown University's agreement to hand over the data, which then the Trump administration said, we need all of this data. Not so much because of what the data will reveal. Admissions officers have, exactly as you say, Melissa, a tremendous amount of discretion over who to admit. They're not just taking the sort of highest scores across the board. That's not what they're doing. They're trying to round out a class. But I was alarmed because of what it signals for the Trump administration. That is to say that they are trying to depress black and brown enrollment at these schools, even though Brown and Columbia had already suffered a 40 % decline post-SFFA.

1:28:27So, you know, I think that the nation has a lot of profound troubles right now. Too many black students on elite college campuses is not among them. Okay, so can we maybe stay on the where we go from here point? Because although the book is, as you have been in this conversation, sober about what you describe as the calamitous results of the opinion, it also is very self-consciously not defeatist, right, about what universities remain squarely able to do within the confines of SFFA. And so you've already talked about potentially offering a preference for individuals who are descendants of enslaved persons.

1:29:03And you talk a little bit about some of the potentially practical difficulties of implementing, but you don't think that any of that is insurmountable. Can you talk a little bit more about other kinds of mechanisms that you do think remain squarely lawful after SFFA? And then maybe do you want to respond a little bit to kind of a skeptical listener who says, well, there's already challenges to other kinds of preferences that either schools or other kinds of institutions are trying to devise that are not on their face about race qua race, but the Stephen Millers of the world would nevertheless like to take down.

1:29:39Sure. Let me tell you about three other ideas. There are a lot of ideas in the book, but let me tell you about three apart from the preference for the descendant of enslaved persons. A preference for people from low-opportunity areas. I make the claim that universities could set aside, even have a quota of 10 % of the class. For people from low-opportunity areas, there's a wonderful publicly available resource called the Opportunity Atlas by Raj Chetty and John Friedman, where they take census data and pay attention to numerous factors that are correlated with disadvantage, including teen pregnancy, incarceration rates, family income, these sorts of things.

1:30:30and preferences for students from those areas would be valuable. There's a wrinkle to that one, though. I think it would make sense to have 80 % of the students from low-opportunity areas come from urban areas and 20 % from rural areas. Because if you just say low-opportunity, I don't believe that's going to have the intended effect. But that is not race qua race. Chief Justice Roberts says directly in the opinion, Preferring somebody because they live in a city is different than race, claw, race. Okay. Second, a preference for tribal members would also be available. Too often, we speak only about black and brown students in this area.

1:31:12Native American enrollment plunged after the end of affirmative action out in California. And the Supreme Court of the United States has said preferences for tribal members is not a racial category. It's not the same thing as Native Americans generally, and so that's another option. The third option would be for these universities who have ivory towers that cast long shadows over black and brown neighborhoods to form partnerships with local schools that have a high black and brown enrollment. And that is just like the Texas 10 % plan in many respects, which has not been understood to violate the Constitution of the United States.

1:31:58So can we focus on the impact of SFFA on the enrollment of minority students in elite colleges over the course of the last two years? It has raised concerns about potential ripple effects of the decision in business, in politics, in leadership. Basically, the argument is that this decision is going to have real consequences on the fabric of a pluralistic democracy just because the numbers have become perilously low in just two years. For those who want to feel more optimistic or to support a more positive future for all of us across the board, are there broader correctives that might be implemented that we all could participate in?

1:32:41Yes. So I think that you're exactly right that we are looking at a lost generation of black students on elite college campuses. And Princeton, by the way, just reported its data. And this year's first year class went from 9 percent black to 5 percent black. So I worry that there are many more shoes to drop over time. The book is focused on universities, elite universities, because what happens in those courtyards plays a disproportionate role in shaping what happens throughout the country as a whole. So I really am trying to focus on what tools remain available to universities to enroll significant numbers of black and brown students.

1:33:39You know, sometimes when affirmative action comes up, people say, oh, it's just such a late intervention. You know, we need to get involved in the K through 12 environment. and, you know, maybe there is some force to that argument, but nothing's prohibiting people from getting involved in the K through 12 environment with the existence of affirmative action. And so the idea that now in the aftermath of affirmative action, I haven't seen people racing headlong to redistribute funds or, you know, start up these sorts of programs. So it always struck me as a bit beside the point when people make these arguments.

1:34:19And I guess one of the other things that I do want people to appreciate about affirmative action is that it has made tremendous contributions to our nation. In 1960, Harvard, Yale, and Princeton had 15 black students total out of 3 ,000. One half of 1%. You flash forward a decade later, it's right around 300 black students. And what happens there, exactly as you say, Melissa, is going to shape what happens in the business world, in the world of academia, in the world of the legal profession and beyond. And so given the declining numbers, we're going to be dealing with this for the decades to come.

1:35:12So as part of our effort to end our episodes on a more positive note, Justin, we've been inviting our guests to share things they have read, watched, seen, or otherwise enjoyed in the last week. So would you mind sharing your recommendations with our listeners? Sure. So I've had a couple of occasions to revisit some things over the last week. I'll tell you about two of them. One is a book by Rick Rubin titled The Creative Act, A Way of Being. This is the great music producer, Rick Rubin. I'm quite confident that he didn't write it to help my little life as a law professor. Or did he? He really does democratize creativity and not talk about I was in the recording studio with this particular person.

1:36:05but instead the mindset of those of us who are involved in trying to create. So it's made a tremendous positive difference in my life. I constantly think about the mindset of abundance versus the mindset of scarcity. We want the mindset of abundance. The other thing that I just reread the other day is a law review article written by Randall Kennedy of Harvard Law School, who was my professor back in the day, my dear friend today. He's written a lot of great law review articles. I'm going to recommend Martin Luther King's Constitution. It's a Yale Law Journal publication from 1989, not nearly as heavily cited as Racial Critiques of Legal Academia or his piece on McCleskey versus Kemp.

1:36:51But it is a model sort of law review article in that he's engaged in thinking about the Constitution outside of the courts and taking seriously Martin Luther King, who lacks a legal degree, engaged in legal decision making. So I just reread that the other day, and I commend it to your listeners. All right. Those are terrific recommendations to end the conversation. That is all we have time for today. The book, once again, is The Fall of Affirmative Action, Race, the Supreme Court, and the Future of Higher Education. It has a very nice cover. The author is Justin Driver. Justin, thank you so much for joining us today.

1:37:29Thank you. I really enjoyed the conversation. And thanks to our incredible intern, Jordan Thomas, for his help in preparing for today's episode. My student. Yes. Train him up for us, Justin. You trained him so beautifully. Thank you. Truly wonderful. Thank you. And since Justin offered up some of his favorite things, I think it's only fair that we provide you with some of our favorite things from this week. So, Kate, why don't you go first? Sure. So I will first recommend a new essay by Alexandra Petrie, who is now at The Atlantic, who's got a great piece titled Apologies. You have reached the end of your free trial period of America.

1:38:06I'll just leave it there. Wonderful piece, hilarious and dark, as she so often is. And then two others we've already mentioned, I don't know, at least twice during this conversation, but our friend Steve Loddick and his One First Street newsletter is always a must read. I thought his latest bonus installment about like holding on to law and refusing to give in to kind of nihilism and hopelessness was like very bracing and energizing. And I highly recommend it if you are feeling down about the prospect of law in this moment, as is a reasonable response to the lawlessness of so many players in the landscape.

1:38:41So great piece. And then finally, the insane piece of New York Times reporting that dropped either Thursday or Friday. I just read it today, Friday, about this SEAL Team 6 mission to plant a listening device in North Korea that went horribly wrong back in 2019. I mean, it is just an absolutely riveting read. And it's also terrifying to contemplate that that all happened in 2019 when there were still people in the military leadership willing to stand up to President Trump compared to now after the installation of Hegseth and the purge of so many top military leaders. So I think everything is going to go great with future clandestine missions, but definitely read that piece.

1:39:22Well, we'll read about the clandestine missions in Signal. So don't worry about that. We'll find out. So my recommendations are one piece I've already mentioned, Chris Geidner's Law Dork Post explaining the machinations in the D.C. courts over the foreign aid funding case. Also wanted to highlight some additional posts by Steve Vladek at one first. One is playing the justices for fools. This, too, was about the D.C. foreign aid litigation. and then Kate appeared on Ezra Klein's podcast last week when we were off and I thought that was just a fantastic episode. Thank you. Oh yeah, that worked out well.

1:40:04We dropped it, that episode dropped like the day that we were dark for the holiday. So completely inadvertent, but yeah, that did work well. Sorry. I think we're just going to start calling it the strict scrutiny Ezra Klein crossover and let him correct us. Okay. Anyway, he will correct us. Anyway, So my favorite things this week are as follows. First of all, I loved Secretary Build-A-Bear, that is Secretary Robert F. Kennedy Jr., who was at a hearing before members of the Senate last Thursday. And all I can say is, listeners, pop your corn and settle in because it is a scene. Bernie Sanders ranting, Maria Cantwell, who I don't think is prone to hyperbole, calling RFK Jr.

1:40:47a charlatan on the record. Amazing. It was fantastic. It's basically like a schadenfreude sound bath. So just let it wash over you. It's fantastic. And if you loved that, you will also love New York Magazine's Reeves Weidman's in-depth story about how almost all of the Kennedy family are actually really appalled with RFK Jr. and may want to excommunicate him. I'm here for all of this drama. Highly recommend it. In addition to those, I loved Hysteria's episode this week. They had an installment of their series, This Fucking Guy. And this time it was about Nancy Mace of South Carolina. And I learned so much.

1:41:29It was just absolutely fantastic. I'm also reading Sarah McLean's These Summer Storms, which Leah recommended to me. Loved it. Loving it right now. also read the Gwyneth Paltrow biography. I know, the unauthorized. And I'm telling you, I will not, I love Gwyneth. I will not hear a word against Gwyneth, but I will read them. So, and there's a lot here. This is great. So that's all for this week. But next week we will be back with a very special segment with a very special first-time guest we are super excited about. So stay tuned for that. Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Littman, Melissa Murray, and Kate Shaw, produced and edited by Melody Rowell.

1:42:14Michael Goldsmith is our associate producer. We get audio support from Kyle Seglin and Charlotte Landis. Our music is by Eddie Cooper. Production support comes from Madeline Harringer, Katie Long, and Ari Schwartz. Matt DeGroat is our head of production. And thanks to our digital team, Ben Hethcote and Joe Matoski. Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. you can find us at youtube.com slash at strict scrutiny podcast. If you haven't already, be sure to subscribe to strict scrutiny in your favorite podcast apps.

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