Trump’s Assault on the Free Press

27:29He has also served as a law clerk to a real trifecta of winners, Edith Jones of the Fifth Circuit, Naomi Rao of the D.C. Circuit, and Samuel Alito. Kayleigh McEnany, the press secretary in the first Trump administration, also named Geyser as the person who floated the notion that Vice President Mike Pence could refuse to certify Biden electors in the wake of the 2020 election. Geyser recently served as Solicitor General for Ohio before returning to federal service. Again, what could go wrong with giving an election denier slash election interferer this power to shape the legal policy and views of the executive branch?

28:07And that's not all in the ammosexuality beat. The Fifth Circuit, always DTF, that's down to fire. Pew, pew, pew, pew. The Fifth Circuit invalidated a federal law that banned the buying and selling of guns across state lines. Turns out that there were no historical firearms regulations that prevented James Madison from hauling his musket from Montpelier to New York. Go figure. And obviously that resolves the constitutional question. Now, speaking of allowing 18 to 25-year-olds the ability to make certain choices or not, we have been talking a lot about the upcoming midterm elections. And with good reason, a lot is obviously at stake in the midterms, which is why the president of these United States has put his back into trying to get states to redistrict and trying to convince everyone that voting by mail, which is how he votes, is a conduit to election fraud, or at least giving his federal government the power to just throw out batches of ballots whenever they so choose, but I digress.

29:10The upcoming election is also one where voters in the gem state, that's Idaho, will get the chance to vote on a ballot measure aimed at restoring abortion access in the state. Idaho's abortion ban was enacted in 2020, but it went into effect after Dobbs as a trigger law. It prohibits abortion in nearly all circumstances, with a narrow exception if staying pregnant would threaten the pregnant person's life. The proposed ballot measure, Proposition 1, would enact a new law establishing a state right to reproductive freedom, which the proposition defines as allowing residents to make their own decisions in areas including fertility treatment, contraception, and abortion.

29:48In particular, it would establish a right to abortion until fetal viability and afterward in medical emergencies. But notably, the proposition will not amend Idaho's Constitution, which means that the state's Republican legislature could overturn it. Now, Idaho is pretty solidly read, but Idahoans are skeptical of extreme ban. They are also skeptical of not having regular health care access, which is why those supporting the measure have taken a new advocacy approach. They're not talking about how the measure will restore abortion access. Instead, they are focusing on how Idaho's draconian abortion ban has caused physicians and medical professionals more generally to flee the state in droves.

30:27According to the New York Times, in the four years since Idaho criminalized doctors who provide abortion care, the number of obstetricians and gynecologists practicing in the state has plummeted. According to a recent study, Idaho had 268 physicians practicing obstetrics when the ban took effect. In the first two years the ban was in place, that number dropped to 94, a 35 % decline, even after accounting for doctors who then arrived in the state. So even with the advent of new physicians, it's a 35 % decline. Currently, about half of Idaho's 44 counties lack a practicing OBGYN. What a great place for the ladies.

31:07Indeed. And as the ballot measure supporters emphasize, that has costs for everyone, not just pregnant patients. Idahoans are facing longer wait times, higher costs, and reduced access to routine preventative care. There have been legal challenges to the Idaho law. you'll recall that plaintiffs filed suit arguing that the Idaho ban conflicted with M-TALA, the Emergency Medical Treatment and Active Labor Act, a federal law that requires hospitals that receive federal funds to provide stabilizing emergency care, which could include abortions to patients. On June 27, 2024, the Supreme Court dismissed the case without making a final decision on the core legal question of whether M-TALA overrode the state ban, leaving in place a lower court ruling that requires hospitals in Idaho to provide emergency abortion care when a pregnant patient's health or life is in serious danger.

31:56And that means that there are still questions as to what would constitute a life-threatening emergency for which an abortion must be provided. Last year, a state court ruled that doctors should interpret the law's exceptions broadly and that patients could receive abortions if they had health conditions or complications that meant that staying pregnant would threaten their lives. However, the court also said that patients could not receive abortions if they discovered fatal fetal anomalies in their pregnancies or if they had a mental health condition that made pregnancy dangerous. All to say that this is all very unsettled and this ballot measure would do a lot to settle things.

32:33But Idaho is not the only state where abortion is on the ballot. In Virginia and Nevada, states where the procedure remains legal, residents will consider ballot measures that would amend their state constitutions to protect abortion rights. And in Missouri, voters turned out two years ago to amend their constitution in favor of abortion rights. But this fall, they will be asked once more to weigh in on a measure that would amend the constitution again to overturn those same protections. TLDR, midterms matter, get out and vote, and vote always. Another beat on the midterms mattering, we are going to talk a bit about what this administration is trying to do in our names.

33:08So the inspector general released its report on alligator Alcatraz. That is the immigration detention facility the administration constructed in the Florida Everglades to house detainees. The facility houses people in extreme heat and unlivable conditions. Shocking no one, the inspector general found that the now-closed detention facility violated multiple ICE standards. Chillingly, the report confirms, reporting and allegations, that detainees were placed in metal cages and in the Florida heat as punishment. The report also notes that the facility flunked several other conditions, among them medical care and food service.

33:45In other news, a district judge invalidated DHS's final rule on the duration of status for certain visa holders. This ruling blocks the administration's attempt to impose the final rule, which would put a four-year limit on certain student visas. That durational limit would have been a huge blow to our ability to supply world-class higher education. The judge wrote that the government's rationale for the new rule was, quote, exceptionally weak. Kells surprise. It also noted that the government's contention that the rule furthered national security interests, quote, borders on the absurd. Again, shocking.

34:22According to the court, quote, to the extent DHS engaged at all on substantive issues, its responses were largely disconnected from academic or practical realities. Yes, that is the same DHS that is headed by, no spaces, Mark Wayne Mullen. Yeah. So no real transition here, at least that is immediately coming to mind, except that ProPublica can't stop, won't stop with its anti-corruption hustle. So last week, it broke the story that among the guests at Don Jr.'s Bahamas wedding, the one his father couldn't be bothered to attend, was Umar Kremlev, a former biker who is now a Russian oligarch with close ties to President Vladimir Putin.

35:03it gets even better or worse, depending on whether you just married Don Jr. So according to ProPublica, yeah, it gets worse. According to ProPublica, Kremlev was not only a guest at the, you know, nuptials or whatever this was, he also was a sugar daddy for the event, footing the bill for some of the festivities. ProPublica reports that Kremlev spent hundreds of thousands of dollars on Don Jr.'s wedding or whatever we're going to call it, perhaps including renting out one of the private islands. Now, speaking of whether this was a wedding, a wedding weekend, or something nearly wedding adjacent, Trump Jr.'s wife, Bettina, disputed the entire account.

35:41As she explains, the couple already had a separate private wedding only with family, and that the weekend that followed the wedding, quote, was never intended to be our wedding weekend. It was just, quote, two incredible nights of celebrations for us after our wedding. that was very generously hosted by, quote, our dear friend Umar. And also, this is me, where the new bride wore white to many of the festivities and celebrations, as you totally do on your not-wedding-weekend weekend. Yeah, this all checks out, right? The fact that it happened immediately after the wedding means he didn't pay for the wedding.

36:18He just paid for a weekend after the wedding that wasn't supposed to be the weekend after the wedding. It was just like a big party after the wedding that had all of their friends on a private island. obviously, right, you can easily follow this. I mean, so it's definitely unconstitutional to have a Russian oligarch pay for your wedding, but it's not unconstitutional to have a Russian oligarch who is also your friend pay for your not-wedding weekend weekend. It is not unconstitutional to take a flight to the Bahamas that are chartered out for you by a Russian oligarch right after your wedding, along with however many of your closest friends.

36:49And a private island. Not unconstitutional at all. No. But reading Bettina's account and response made me wonder, did John Roberts or Clarence Thomas write her statement? Because the reasoning sounds an awful lot like the Supreme Court's opinion in McDonnell v. United States, which threw out a conviction for public corruption where a governor and his wife allegedly received a bunch of money for, among other things, and gifts for their daughter's wedding. We're going to take a short break right now, but when we come back, we will be joined by Crooked's own Alex Wagner to talk about her fantastic new book, The Steal.

37:29But before we go, do you have your tickets for Crooked Con? We are so excited for Crooked Con and our live taping of Strict Scrutiny in Washington, D.C. on November 6th. Make sure you get your own Russian oligarch to fly you in on a private plane for your not Crooked Con, Crooked Con weekend. Again, it's going to be absolutely fantastic. Our live show will be one day before the all-day Crooked Con event. So that's two days of amazing programming. We are going to announce the guest lineup for our live show next week. And just gonna say, thank you guys. You're gonna love this lineup. So get your tickets while you still can because tickets are going fast.

38:08You can join us for all the jurist nonsense you can handle. Head over to crookedcon.com right now.

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39:32So folks, I've been dying to go to Paris in the wintertime to be bundled up in some fabulous coat and walking by the Seine, just being fabulous. You know, it would make me even more fabulous if I could say something in French to someone in Paris in the wintertime while I was bundled up in my fabulous coat. And I'm going to get there. I'm going to commit to learning the language to make sure that my personal trip is not just personal and fantastic, but absolutely fabulous. And you can do it too. Start learning a new language today with Babbel. Right now, Strict Scrutiny listeners can save up to 60 % off at babbel.com forward slash strict.

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42:35As you know, Strict Scrutiny has always been a podcast about the Supreme Court and the legal culture that surrounds it. As part of that charge, we have often speculated about how certain justices became the goblins that they are today. What exactly is their villain origin story, if you will? So Neil Gorsuch, as we've speculated, may be the product of some very serious mommy issues And Clarence Thomas's views on race and, again, a race-neutral constitution may be shaped by his hardscrabble upbringing in Pinpoint, Georgia. But what we have not yet speculated on or done a deep dive on, listeners, is the origin story of this goblin court itself.

43:18How did we get this conservative supermajority that by itself is responsible for so much of what we are dealing with in our politics and in our lives? But happily, listeners, help is on the way. Today, friend of the pod, Alex Wagner, is here to discuss her book, The Steal. Four right-wing hardliners, one Republican presidency, and the raid on America's courts, which was released on September 15th. Alex is a familiar voice at Crooked. She is the host of Runaway Country, one of my favorites. She is also a contributor to Pod Save America, injecting some much-needed estrogen into that show on a regular basis.

43:56And she is also a senior political analyst at MS Now and the author of How the Hell with Alex Wagner on Substack. In her latest book, The Steel, Alex does a deep dive all the way back to 1980 and the election of President Ronald Reagan to give us the Roberts Court's villain origin story. She explains, the Reagan presidency was a time when, after decades on the fringes, the conservative right rose to power, and it used that power to reshape American foreign policy, from tax cuts to trickle-down economics. But, as Alex reveals, those outward-facing policy agenda items were just the tip of the iceberg.

44:33At the heart of this book is the Reagan presidency and those four right-wing hardliners and their quest to transform not just the American executive, not just the American Congress, but also the courts. And that's where we start today. Welcome, Alex. OMG. What an incredible intro. So tantalizing. I owe you, like I'm not having any more kids, but I'd give you one of the ones I do have as this. I don't want any more kids. I'm good. Well, yeah, more of a curse than a blessing. I mean, I love them. No, they're great. I'm just like, I'm tired. I'm old. I'm tired. Maybe flowers. Maybe just flowers. I am so honored that I have you like talking to me about this book.

45:15There's literally nobody I would rather talk to about it. You obviously know far more than I do about the law, but I feel like this is a very juicy, very juicy period in American history that has, you know, implications for today, like literally this hour as we await. That's why I had to give you that breathless intro because I read this. This book was propulsive, Alex. I mean, I know how it ends. And I was still like, can I stay up late to do this? Can I elevate my cortisol to read this book all night long? I don't know. God bless. God bless. I worked. It was very, it was a labor of love, I guess we'll call it.

45:49But I learned a lot, and I do think it was like, you know, it's eye-opening for people who aren't familiar with the origin story of the Federalist Society and the Heritage Foundation, but just also the injection of partisan politics very explicitly into the judicial system. How did you decide to cover this? Like, you have done so many things in your career, and you've covered so many important topics. Why did you decide to focus on the Reagan presidency and this plot to basically capture the courts? I am, like you, Melissa and Kate and Leah, incensed by this goblin court. By the way, excellent descriptor.

46:25I feel like I understand the separation of powers. I understand nominally how the founders wanted it. And I think what we are living through is an utter bastardization is too weak a word, but like a corruption of the judicial branch. And it is so undemocratic the way Roberts is running it and the way, you know, the opinions we get from Alito and Thomas just make your eyes bleed. They're so out of step with both the Constitution and public opinion and where our society is headed. And it just, I can't, this sounds so sort of rosy, the river, I can't stand injustice. And I just feel like the injustice of this particular judicial branch galls me.

47:04So I'm very, like, it wasn't, it wasn't always like this. So what you just said just reminded me of something. Do you remember back in the 80s when they had those designer imposters? Like, if you love Giorgio, you'll love Primo. If you love injustice, you'll love the Roberts Court. Yeah, exactly. If you love bastardizing the Constitution, may we introduce you to someone named Neil Gorsuch. First of all, I wrote a different, very different book, much more personal, much more driven by the politics of identity than the politics of, well, the presidency. It's called Future Face. I'm very proud of that, too, but it was very different than this one.

47:40And I vowed I would never write another book because it's such extraordinarily difficult work. And yet I was talking with my book agent and we were talking about this period where you had the dawn of the Federalist Society. And the origin story is so unusual. People, I don't think, realize that it was like three students who were tired of woke lives on campus. Yeah, at Yale Law School and University of Chicago. Yale and UChicago. And there was a professor named Nino Scalia that would help advise them and a professor named Robert Bork. And from there, they were off to the races. But even the Heritage Foundation and the origin story there and the way in which, you know, we talk so much about Project 2025, it began with a mandate for leadership, which was their version of Project 2025 in 1980.

48:21And just all these things that exert like outsized influence on our lives as Americans really were born in this singular, discrete period in American history. And once I sort of came to that realization, I thought, well, fuck, now I need to write a book about it. You start off with the dawn of Ronald Reagan's presidency. So mourning in America, if you will. And the point of the book, I think, is that Reagan's kind of an ancillary figure. Like, we think of him as, you know, the father of American conservatism. But he's very quickly sidelined in this story. You describe him as, quote, merely a sunny figurehead.

48:59And his sunny nature is actually in stark juxtaposition to the people under him who are literally fueled by anger and grievance. They are pissed off. They've been in the wilderness for so long. And you talk about four very influential men from the shadows. These are Ed Meese, Paul Weirich, Joe Kors, and Robert Bork. And your description of them is absolutely hilarious. You call them, quote, a disheveled police enthusiast with a punitive streak. That's Ed Meese. An ultra-religious college dropout with a thing for trains. That's Paul Weirich. a joyless, paranoid beer magnet who believed that zip codes were an insidious government plot, that's Joe Coors, and a testy conservative contrarian who was a one-time advocate for the New Deal, Robert Bork.

49:47I love this. Could not, like, best descriptions ever. How did these four men come to be the engine of a movement that ultimately resulted in the capture of the courts? Well, listen, I think the big picture answer to that is the conservative movement is particularly good at developing generals and foot soldiers who are tenacious, who are unstinting in their focus, and who are really patient. And that is something I think, you know, you can read this and it can be a horror story for you, but it also can be a manual for, I think, what progressives and liberals need to think about as they launch their efforts in the next coming years to reform all the things that need to be reformed, which is patience, tenacity, money also helps.

50:29But, But, you know, they did it because they needed money. Joe Coors had a lot of money. Coors beer, you may remember it. I'm old enough to remember the 80s when people were banning, you know, libs, good libs like the ones I grew up with were not drinking Coors beer because of its labor practices. But, you know, Joe Coors and his brother - That was just the tip of the iceberg. Yeah, Joe Coors and his brother would enclose literature from the John Birch Society with their employees' paychecks. Like they were ardent segregationists. They hated the civil rights. They thought what was happening across the country in the 60s and 70s was like the trashing of America.

51:06And he felt very strongly. Just to be clear, what was happening was like people of color just happening. And women. And women, yeah. And made clear that he wanted to spend his money on conservative causes. And Joe Kors, you know, there's interesting like sort of sidebars that you can go into. Like he worked with a young man named Roger Ailes trying to launch a conservative television station. You may remember Roger Ailes from his stint at Fox News. But one day, there's a young staffer that picks up the phone when Joe Coors' money man calls looking for conservative recipients for Joe Coors' money, and his name is Paul Wyrick, who is—I think if there's any character that should be a household name who is not, it is Paul Wyrick.

51:46I mean, people may have heard of Joe Coors because they know beer. People may have heard of Robert Bork because they remember his failed Supreme Court nomination. And people may remember Ed Meese, who is the attorney general. but Paul Weirich is really the brains of the operation. He sees Reagan as an opportunity to radicalize the right, to make it the party of the new right, to get rid of like the squishes like James Baker and the sort of mealy-mouthed, middle-centrist conservative Republicans. These will be rhinos at some point. Exactly. This is the early rhino. And Weirich starts a number of organizations, among them ALEC, which you may remember from the organization that writes legislation, that then gets turned into law, including stand your ground laws across the country.

52:30He creates something called the moral majority, which is harnesses the power of Christian evangelicals. And he creates, among others, the Heritage Foundation and really understands that people in elective office are often held hostage by politics. And what they really need is a conservative beacon to hold them accountable. And that beacon becomes the mandate for leadership, but also all the activism he does on the outside to ensure that real conservatives pass a litmus test and that they march in a certain line towards the real end goal, which is a rewinding civil rights progress and social progress of the last 20 years.

53:07And then, of course, there's Ed Meese. He's critical because he's actually inside the government and eventually becomes the head of the Justice Department. And Ed Meese can then bring in the newly emboldened, newly indoctrinated foot soldiers trained in places like the Heritage Foundation or the Federalist Society and make them lawyers in the Justice Department and maybe, just maybe, ensure that one day they become judges themselves. Wait, wait, Alex. Spoiler alert. Does Ed Meese tap any young, enterprising, fresh-faced conservative foot soldiers for the Justice Department? There are some interesting foot soldiers that end up in Ed Meese's Justice Department.

53:46Among them, a man named Samuel Alito and another one named John Roberts. John Roberts in particular works hard to figure out how to unwind the Voting Rights Act, something he does with alacrity once he's made the chief justice of the Roberts court. But this is the field where these guys are trained, you know, and I think - The crucible where they are formed. It is, it really truly is. And they need a theologian for this holy war. And that theologian is Robert Bork, who is the eminence gris of conservative law, who mainstreams originalism and makes it the doctrine of the new right. And, you know, also his scuttled Supreme Court nomination turns into a recruitment bonanza for angry conservatives.

54:32So they all play like essential roles, both inside and outside the administration. And it couldn't happen without them. And I think people don't really look holistically at the collection of strange toys that made this moment a reality. I was surprised that Nino Scalia didn't make it into this pantheon of disgruntled men. Yeah. I mean, I think the reason—part of—I didn't want to focus on Supreme Court justices, in part because, first of all, there are and will be amazing biographies written about—we get into the Thomas nomination because it's very much an expression of all the work that the right has been doing for the previous decade.

55:15But there is great, you know, you guys cover Thomas. There's amazing Slow Burn podcasts tracing his personal history. There's - Joel Anderson is a genius. That is a great podcast. Exactly. And, you know, I cite like some of the seminal biographies on Thomas, Jill Abramson's among them. Like there's great writing about Supreme Court justices. What I was interested in were the political actors who helped make their ascensions inevitable. because that's the less told story. And also, you know, I like politics a lot. Throughout the book, I was like, this should be a movie. Like, I mean, and that's a credit to you, Alex.

55:54I mean, the writing is so gripping and propulsive that I was like, I could totally see Jesse Eisenberg in one of these roles. Is he the, does he have the manner of a formal, slightly constipated owl, a la Paul Weyrich? I think he does. I really think he does. It's such an interesting story. And one of the things I think you convey so clearly is that this is not serendipitous. You call it a steal and you refer to it throughout the book as a heist, but their plan to remake the judiciary is deeply considered, pathologically plotted, and they just stay on their hustle for the long term. So I want to just sort of talk about the various elements that go into this long play.

56:40I mean, this is the long game for real. So we know the Heritage Foundation. Here on Strict Scrutiny, we talked about the Heritage Foundation's Project 2025. We tried to warn you, Black women trying to tell you things. They tried to warn us. They were like, this is what we're going to do. Like, I mean, they tried to warn us. And we were like, and we on Strict Scrutiny totally believed them. We called it disaster piece theater. But most Americans were just like, what's that? Huh? I don't get it. But they've been plotting this for a long time. So the mandate for leadership was the beginning, and Project 2025 is merely the progeny of it.

57:15But what was the point of the Heritage Foundation, and what is the point of the Heritage Foundation today when so much of what they were planning and plotting has actually come to fruition? Yeah, they're done. They can just close up shop. Look, initially, Paul Weirich, as a young staffer on the Hill, saw the interlinkage between organizations like Brookings and People on the Hill. They understood that there needed to be connective tissue built between conservative lawmakers and conservative thinkers. And that is the essence of the Heritage Foundation, right? To basically set out the roadmap and then have the yabos up on the hill execute on it.

57:48They don't essentially trust people in office enough to get it done. They think they need it really. I mean, and they're not wrong. And Alec is another expression of that. They need someone to think through it for them, hold them accountable and give them the mandate essentially. And so that's the mandate for leadership, which is a massive book that the Heritage Foundation prints out in time for Reagan's inauguration. And Mies, to his credit, who's charged with transition, makes sure there's a copy of the Mandate for Leadership, aka Project 1980, on the chair of every senior advisor and cabinet official in the incoming Reagan administration, just to make clear, this is what we're going to do, and this is how it's going to go.

58:32So that's essentially the role of the Heritage Foundation. And something like that hadn't existed in conservative circles up until Paul Weirich dreamed it up. On a walk with his wife and saw a sign for heritage houses and thought, that's a good name for a foundation. How did we get the Federalist Society? So these are often talked about in tandem, but they are very different organizations. They have very different origin stories, but they come together and complement each other in this quest to execute this heist of the judiciary. How do they work together and how does this come about? I will, if I was going to make a movie, I would probably focus on this because the origin of this kind of buttoned up conservative, like very kind of wonky, I guess, is being forgiven.

59:18But fusty organization comes from like a story that everyone who's ever been in college or grad school can understand. Three law school students, Lee Lieberman, Dave McIntosh, and Steve Calabrese, two of them go to the University of Chicago. one goes to Yale, are in Arlington, Virginia for the summer, and they're sitting around having a late night bull session one night. They're all working internships on the Hill. And they're talking about the fact there's, I think we don't clock how much enthusiasm and energy there was around the conservative movement once Reagan came into office. Young conservatives were like, this is our moment.

59:52Let's do something big. Sort of similar, maybe the analog might be to Charlie Kirk and his campus outreach or in the Trump years. Like there was palpable enthusiasm among young conservatives on campus. And they thought, you know, there's no organization that services us. College campuses coming out of the 1970s are awash. And, you know, late night rap sessions and circle, you know, circle discussions with the peace pipe talking about desegregation and civil rights and women's lib and equality. Fuck that. Well, this actually is interesting to me because I could see how like a Steve Calabrese might look around Yale Law School where they're literally just like people hanging around from the civil rights era, teaching classes and could say like, okay, there's no one for me here.

1:00:35Although Robert Bork was teaching this. Yes. Yeah. So, I mean, it wasn't like he was completely in the wilderness, but the University of Chicago seems like a place where young conservatives would be happy. I think it is probably a common, having not been there to talk to them about what their motivations were. I think it was a combination of both we feel alone in some of these conversations, but also we know there's energy and enthusiasm, but there's no formal structure by which we can convene and debate. And that is, as it turns out, incredibly desired at college campuses across the country because they have their first symposium, the Federalist Society does, in April of 1982 on the Yale campus.

1:01:16And it's like, you know, Politico did some great reporting on this. Attendees were like, it's Woodstock. I call it right-wing Woodstock because let's just be clear, it wasn't fucking Woodstock. And people are like— Woodstick. Woodstick. Hoodstock? They are sleeping on each other's floors. They're like having late-night gab sessions. They're smoking cigarettes and talking to Nino Scalia. There's like energy in the air. And it becomes such a hit that other colleges and universities start calling and saying they want to set up Federalist Society chapters on their campuses. In attendance at that first summit, if you will, are members of the Reagan administration, people who will one day end up, including Ted Olson, Solicitor General, inside the machinery of government and serve to, you know, build a pipeline to bring these young, bright-eyed conservatives formally into government.

1:02:09So it's like just an unusual, interesting, sort of humble beginning for an organization that has since become, and you can speak to this better than I can, the most important society, organization, staging ground, if you will, for ascension to the Supreme Court of the United States. No, and again, listeners, we have had on this podcast in the past, Amanda Hollis-Bruski from Pomona College who wrote Ideas with Consequences, which is a history, a genealogy of the Federalist Society. And it's absolutely brilliant and really lays it out. But the picture you paint, I mean, again, it is very cinematic, Alex.

1:02:48But, like, these are people who feel completely disaffected, which to me, honestly, as a Black woman, I'm just like, dudes, what are we talking about? But isn't that what we're dealing with now? I mean, I feel like the essence of, like, the true snowflakes, the people who melt are really the conservatives. They're still so angry about not being invited to the party. I feel like so much of American politics and American jurisprudence could be fixed if people who needed therapy would just get it. Just go to therapy. Like, just talk about, like, you know, I'm super conservative and no one wants to hang out with me.

1:03:25And just talk to someone about it. Like, make a plan. Get some better help. Yeah. I think also maybe go on some dates, like maybe have sex. Like, I think human connection, feeling loved, feeling touched, Like, these are all essential parts of, like, humanity, and we're so closed off. Like, you're painting a picture again, Alex, and I don't want to say it. I think they were having sex at Wright-Wing Woodstock, to be honest, and so maybe that didn't really change anything, because look what we got. I mean, I'm not going to say anything. All I know is that there are a lot of reports coming from the Republican Midterm Convention, and apparently, allegedly, Grindr is going crazy.

1:03:58Right. Okay. Well, so maybe disregard what I just said. Yeah, I just, I mean, lots going on. Go to therapy. Go to therapy. be. It's always good, too.

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1:06:29We'll see you next time. visit jameshardy.com slash hardybacker.

1:06:40So the steal focuses on players who are less well-known to us court watchers. So we have the folks that maybe pass under the radar, but you also do note, as you just mentioned, some of our current justices who were literally formed in the crucible of this effort to transform the court and its jurisprudence. What details did you learn about certain justices and their origin stories that would give us a better lens through which to understand their jurisprudence and their work on the court today? Well, I mean, I will say at the risk of like stepping all over the Neil Gorsuch-Slowburn series, which I'm obsessed with, I'm sure you guys are too.

1:07:21So good. The Anne Gorsuch, Neil Gorsuch's mother is Cruella DeVille, essentially running, you know, like descending into Washington, D.C. with cigarette and hand and fur coat. I mean, props, like at least she's glamorous, right? And her time in the barrel, paraphrasing Roger Stone as the head of Reagan's EPA and her summary dismissal or resignation really has a profound effect on Neil Gorsuch and his desire, I think, that is calcified at this point to fight, fight, fight like hell and disregard your critics is like a very essential part of his origin story. Likewise, and then this is more familiar territory, I'm sure, but Clarence Thomas's drafting into the Reagan administration is really interesting.

1:08:08He's just so adamantly against wanting to have a job that a Black man would have. He bears this— He does not want a Black job, whatever they are. He does not want a Black job. He does not want to talk about race, And he despises affirmative action because it's a, you know, he feels like he, it has been an albatross around his neck, both when he was in school and as a professional in Washington, D.C. and other places. and he is very, he's pissed, you know? He's pissed about race. He's pissed about racial equity. It is a cross he has borne his whole life. And therefore he realizes around the time that he goes into work for the Reagan administration reluctantly as head of the Equal Employment Opportunity Commission, the EEOC, that if he forsakes the traditional role of a black man in society, which is to be someone perhaps who understands and holds close the experience of a Black man in one's professional life, and forsakes that in lieu of conservative ideology, which does not look at the experience and lived reality of Black men and find any particular importance or reason to consider it in lawmaking, he realizes he can get far.

1:09:27He realizes if he becomes the guy that will be the apologist for racist legislation, he's going to be a real player in Washington, D.C. And it is very far from his wildest dreams that he'll become a judge and basically has to be convinced to put his name in the hat to be a federal court judge. And then he becomes one and we know where he goes from there. If you've listened to Joel Anderson's slow burn becoming Justice Thomas, this is not unfamiliar. I mean, he does not want to be in the EEOC. That is truly a black job dealing with race discrimination. And it is his mentor, Senator John Danforth, who comes to him and says, I don't care if you think this is inappropriate.

1:10:12at an Uncle Tom assignment, you're going to do it because this is a stepping stone. And, you know, you're going to make your name here and then you'll go on. And, you know, and Thomas has no problem doing that once there is this intervention and, you know, the path is laid out and, you know, lit for him going forward. But it's just so interesting how he's opposed to sort of using race instrumentally until he's not. And then he's using race instrumentally. And then he rails against the idea of race being used instrumentally in the context of a firm faction. Well, he's full of contradictions, our Clarence Thomas.

1:10:47But what's so - Like I said, therapy, therapy would have helped. Yeah, well, what's so astound, I mean, he goes on a sort of conservative rumspring where he like self-radicalizes with conservative mentors. Yeah, Thomas Sowell, all the people, yeah. And like, really, it is a concerted effort to become the man. He doesn't naturally come to it. He makes a decision. This is the life I'm now going to have. This is the person I will be. And slips into it, never looks back. No, it's literally like Anakin Skywalker. Like, I'm going to put the helmet on. It is exactly that. Yeah. If only Anakin and Clarence had gone to therapy.

1:11:21I mean, he goes through a remarkable transformation, to your point. Like, he is one person and then becomes another. And we can't overstate the importance of his fortuitous meeting with Virginia Lamp, the white conservative lady who never dares to date a Black man, never dreams that such a thing will be possible. and then flips the script on that and becomes, I think, arguably the most important person in, I mean, we talk a lot about - Virginia Lamp would become Ginny Thomas for those who are untutored in the Thomasverse. That was like a deep tease. A deep tease. She becomes Ginny Thomas and brings him into a very, very conservative church.

1:12:00And she herself is a, I won't say scion, but is part of a very conservative family. and, I mean, helps with the indoctrination and makes it, I think, a closed issue. I do love, there were news reports about this, the lamps when it becomes clear that Clarence and Ginny are getting hitched. They say something to the effect of, like, he was just so nice that we were, you know, we had to accept him. Well, it's so interesting, right? For someone who's so, like, obsessed with this idea of being accepted and not being seen as a Black man, he puts himself directly in the crosshairs, whether as a Supreme Court justice or as a mouthpiece for conservatives or as the husband of a white conservative Christian lady whose parents are, I can only assume, people who are maybe fans of segregation.

1:12:49Like he keeps putting himself in the most robust testing grounds he can. And I think that further develops since his like, you know, iron sharpens iron, Clarence. Resentment, exactly. He's gonna do it. All right, let's zoom out and think about the bigger picture that you articulate in the final pages of the book. So you write, Alex, quote, as president, Reagan is remembered for Glasnost and Oliver North and trickle-down economics, his love of Nancy and jelly beans and the generation of Alex P. Keatons who emerged in his wake. He is less known for his stunning takeover of the American judiciary.

1:13:25One, why is this aspect of Reagan's legacy so overlooked? Two, when we do appreciate what the Reagan presidency did for the court, why do we think only of the court? Because as you note in the book, this is a transformation from the bottom up. The entire federal judiciary and also state courts are part of the picture too. Speaking in today terms, I think it's hard for us to understand how Reagan initiated a conservative takeover of the lower courts. Because in the Trump era, the lower courts are almost the saving grace of the federal judiciary. right? Like, look at where we are with the Supreme Court, constantly at odds with the lower courts.

1:14:05They are seen as the bulwark of democracy. So it's hard to understand that overall the judiciary was made significantly more conservative and partisan, I will say, in the 1980s, given that the expression of it right now in this particular moment is one of, I won't say liberalism, but just lawfulness, which has become de facto liberalism. I don't think we fully appreciate how the first Trump administration actually did change the complexion of the judiciary, like, very, very significantly. I think the Biden administration was able to do a lot of work to counteract that. But it's all being reinstated in Trump, too, with the kinds of judges who are being appointed.

1:14:45And so, you know, maybe this is just a story that we don't register what's going on with courts. Like, when Jimmy Carter died, I did this whole thread on Blue Sky about his impact and diversifying the federal judiciary. And people were like, oh, my God, this is amazing. And I'm like, literally, that's what he did. He just never got any Supreme Court justices. So we don't really register what Carter did with the court. I think we do not fully appreciate what presidents can do with the court and what they have been doing. Because the Trump administration has very diligently reshaped this administration.

1:15:15We may not feel the effects of it now, in part because a lot of these cases challenging the administration are being filed in places where there are hospitable, I think, judges. Like, true rule of law judges. If we branch out into some of these other districts, take Missouri, for example. Oh, yeah, I was going to say. Don't go down south. Yeah, I think it might be a different picture, and it's changing rapidly as more and more of these Trump 2.0 judges come online. And they're not even the ones being vetted by the Heritage Foundation or the Federalist Society. The Federalist Society is now at a point where there are a bunch of squishes, right?

1:15:49We're now in a whole new territory of fighters and warriors that are less beholden to law and the Constitution than their predecessors. I will also say I am hopeful that people pay more attention to judicial appointments because the courts just matter so much more than they have, in part because Congress has been castrated or self-castrated in some, if you think of the Republicans in Congress. But the legislative branch has been so hobbled that the judicial branch has really taken such a place of prime importance that people are paying attention to it more. You know, like state Supreme Court races now get national attention.

1:16:23That wasn't the case in the Reagan years. But like what we what we I don't think understood is like the idea of injecting explicitly partisan politics into the judicial selection process, into the Department of Justice, into the judicial system writ large. That is a confection of the Reagan era. Confection is too light a word. But that is that is one of the longest lasting legacies of the Reagan years. So is there a lesson for us in this? I mean, the story you paint is so chilling, but it's also a blueprint, right? Yes, yes. And that is also, that is, like I think you can, like I was saying before, you could read it, you could read this as a horror story that we are now living in the, you know, the after effects of.

1:17:05Or you can read it as a blueprint for how the left or democracy-minded individuals can seek to reform the institutions that have been sullied or castrated or otherwise tossed asunder in the Trump years. Are we disciplined enough to do this? I don't know. This took discipline. I think that's a huge question. We need a party of Virgos. That's what I think. As a Sagittarius, I disagree. But that's what I would do as a Sagittarius. Anyway, I think that the thing that struck me is how, again, they saw catastrophic losses, like Sandra Day O 'Connor and the end of the board. They thought Sandra Day O 'Connor was a loss for them.

1:17:47They're like, she's too liberal. Well, this is what I'm saying. And they were like, oh, they retrenched and kept going and they didn't lose sight. And I think that is one of the biggest takeaways. And I think you need to, I mean, you need to read the book because it's so good, but also to have the full picture, it's like you have to understand the sort of way, the temperament that is required, the funding, and the lack of expectation that you'll get any payout, maybe even in your lifetime. That's the thing. That, you know, I go back to that AOC quote. She's like, why be president? Healthcare is forever.

1:18:21That's the attitude that I think legislators and activists need to have, that they're in it for the lifetime goals, not the sugar high of an election. People have been asking, you know, what do we work for? What do we do? And I'm like, listen, I'm 50 years old, 51 years old at this point. You look fantastic. Girl, thank you. I'm on Sam Alito's skincare regime. I'm like, just literally like oiling myself with grievance every day. But I recognize that I don't know that I'm going to be around long enough to realize or take advantage of the things that I am working to see happen. And so I think you have to be okay with digging wells from which you will not drink and planting trees whose shade you will never sit under.

1:19:07Like, you have to be okay with that. And I wish we, like, it requires, I think, a kind of collective mindedness that is very hard to muster at a time where you feel like everyone feels under siege. Yes. It's very hard to be patient when people are losing their lives, losing their residences, losing their jobs. I mean, losing so much. There's the fierce urgency of now. But the reality is that change, lasting change, takes work and blood and sweat and tears, and it often takes way, way, way longer than anybody would care to admit. So that's one of the takeaways of the book, which ironically is my hopeful takeaway, that it is possible, but you have to dig in.

1:19:48That's right. You remind us that these were just four misfits with nothing but a legal pad and a dream, and look what they did. It took them a long time, but they did it. And you know what? We've got four misfits in the Democratic Party somewhere. We definitely have legal pads. We can do this. Amen. Alex Wagner, thank you so much for dropping by and dropping so much knowledge. This is fantastic. You're the best. Thank you for being a supporter. Thank you for the essential work you do on all fronts. We owe you a debt of gratitude. I'm not going to give you one of my kids because that doesn't seem like a gift.

1:20:21That seems like more work, but I will send you flowers. I love kids and I love your kids. And I would happily, like, you can put me down as you're in case of emergency. Auntie Melissa? I'm happy to be an auntie to your brood. But listeners, you don't have to be an auntie to Alex's book. You can adopt this book and take it home and make it yours. The book is called The Steal, Four Right-Wing Hardliners, One Republican Presidency, and The Raid on America's Courts. And it is just as titillating and tantalizing as that made it sound. It is a must-read, gripping, thrilling, and rollicking. And you can get it wherever you get your books.

1:20:55I like to get it at bookshop.org. Yeah, baby. You are the best. I love you forever.

1:21:06And now to our favorite things. So among my favorite things is Alex Wegner's book, The Steals. I mean, really, as we are leading into the midterms and the 2028 election, just getting more people to be educated about the right wing takeover and plan and capture of the courts, I just think is essential to building the momentum for pro-democracy changes, ideally after 2026 and 2028. Kate Mann had a post on the Yesteryear book on her sub stack, and it was everything that I didn't know I needed, but absolutely loved it. I just finished watching Ponies, unfortunately a show that got canceled after one season.

1:21:44Extremely sad. I enjoyed it immensely. And then I also read The Retirement Plan by Sue Hinsenbergs, which is about a group of 60, some women who decide to murder their husbands to get the insurance money for a retirement plan. tons of twists and turns, right? All over. Very fun. I'm seeing a theme in all of you. Did you? Like these ladies decided to turn their husbands into husbands. There we are. I also want to plus one Alex's book. Like I said, I already know how this ends, but Alex is such a brilliant writer. I mean, it's so compelling and propulsive. Like you're just like, oh my God, I got to find out like what happens next.

1:22:24And you know what happens next. You know, You can't get an abortion in half these states, so you know what happened next. But it's still an amazing read, so make sure you go and grab it. Another favorite thing this week for me was meeting so many stricties in the wild. I met Patty, Sasha, Jonah, and Alex at Grinnell College, where I delivered the Rosenfield Lecture for Constitution Day. Many thanks to Grinnell President Ann Harris and Professor Ed Cohn for the warm Midwestern welcome. I then headed to Philadelphia to talk about the Constitution and the place where it was born. So shout out to Riley, Caroline, Terry, Allie, and the great audience of lawyers at the Philadelphia Bar Association's Bench and Bar Conference.

1:23:03Thank you. But, folks, my absolute fave of the week was all of the social media dragging Cash Patel. And I just want to say, folks, I have not always been excited about Strict Scrutiny's migration to YouTube because sometimes you just want to slap on a baseball cap and sit in your podcast closet and broadcast from there. But this week, I've come to understand the true value of a visual medium because it means that I can share screenshots of the online dragging of Cash Patel with you. So take yourselves over to YouTube to enjoy these little tidbits in their full glory. So first up, one of my favorites comes from at Blair Erskine, who is a very funny lady.

1:23:47I believe she is a stand-up comedian, who provided us with the following, quote, Cash Patel's Got That Dog in Him in the Worst Way Possible. There's so, so much amazing content. I love this one because it reminded me of a 90s era song. You know, those songs from like R &B in the 90s where there were always dogs barking, you know, like, like, yes, like Freak Like Me by Adina Howard is a perfect example of this genre. Anyway, and there's this other one from at TV Daryl with two R's. Cash Patel is in a bar somewhere drowning out his sorrows with a Moscow mule. Probably ordered a drink too.

1:24:31Another one from Blair Erskine who was on one. Blair writes - This one is tops. A lot of them are really good. That's true. I had a hard time choosing, not going to lie. So Blair Erskine writes, dog ate your homework? You're lying. Dog ate your - I can't even say it. I'll say it. Dog ate your ass, you're hired by the FBI. And then finally, I mean, finally, only because Leah insisted that I limit myself to four. From at Liz Warren Austin. Number of Haitian immigrants eating dogs, zero. Number of Republicans and or FBI recruits fucking dogs, not zero. I had proposed to Leah that this entire your show just be nothing but us reading threads in blue sky.

1:25:19And nothing else happened this week. I would not have objected. Alas, the universe intervened. Well, the universe intervened and we responded. So that's all we have for you this week, folks. We're Strict Scrutiny. We hope we'll see you at CricketCon and until next Monday when we'll be back in your ear holes. See you soon.

1:25:42star scrutiny is a crooked media production our show is produced by melody rowell and michael goldsmith our music is by eddie cooper our team includes matt degrote ben hethcote johanna case kenny moffitt adam lippert and eric shoot our production staff is proudly unionized with the writers guild of america east

1:26:15If you missed some of your favorite Crooked Pods this week, don't worry. You can now catch up on the week's best moments on MS Now on Saturday nights. MS Now is streaming an episode of highlights from your favorite Crooked Pods, packing as much analysis, funny moments, and 100 % correct opinions into 40 minutes as humanly possible. Crooked on MS Now airs every Saturday at 9 p.m. Eastern, 6 p.m. Pacific.

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