Why is SCOTUS Hoarding Opinions?

25:59And it's patients who are paying the price. Take the Supreme Court. It paved the way for states to exclude Planned Parenthood health centers from state Medicaid programs in Medina versus Planned Parenthood. This undoubtedly violates patients' right to get care from quality providers that they choose. And last year, the Trump administration and Congress defunded Planned Parenthood, trying to shut down Planned Parenthood and block patients with low incomes from birth control, cancer screenings, STI testing, and more. That's why Planned Parenthood is fighting back. But fights like these take resources and supporters like you.

26:30No matter the size, your donation makes a real difference, helping Planned Parenthood meet this moment and protect patients' access to care when and where it matters most. If you believe all people should get health care, no matter their income, donate now at plannedparenthood.org slash defend.

26:54Enough rank speculation, though. It's time to dive headfirst into bad decisions season. We're about to drag them. Let's go. And to help with the dragging, we are so delighted to welcome to the stage, one of our favorite friends of the pod, the one, the only, the Ellie Mistal.

27:28What's up, New York? Can I just quickly say, because you mentioned primary day already, and I just want to remind and everybody here and everybody listening to the show, that in New York, there are candidates who care about the Supreme Court, okay? There are candidates, they are running in a primary on Tuesday, they are not named Chuck Schumer, and you can vote for them. And if you do vote for them, and you say that you're voting for them because they care about the Supreme Court, that is a huge way to start to turn the ship of state that is the Democratic Party towards the kinds of reforms that I think a lot of people here agree with.

28:09All right. You just cut into your intro. Sorry. Okay. This is my friend Ellie. I'm kidding. Ellie needs no introduction, but I'm going to give you some because it's Juneteenth. All right. Here we go. Ellie is the justice correspondent for The Nation, and he is also the author of two New York Times bestsellers, Allow Me to Retort and Bad Law, both of which we have covered extensively on this podcast. He joined us at our live show at the Tribeca Film Festival two years ago, and the energy was honestly so chaotic. He was filling in for Leah, who was recovering from her bike accident, but it was so chaotic that we were like, what would it be like if Leah and Ellie were on stage at the same time?

28:56And so, here we are. Welcome, Ellie. Thank you so much for having me. Yes. The principal at my kid's school says that I am an agent of chaos. There's that. So let the wild rumpus begin. This cocktail is pretty good, but I can't help feeling a little disappointed. Have some concerns? Have some concerns when I drink it. We are going to dive into the opinions, as we just mentioned. But before we do, Ellie, wondering if you have any theories, we floated a couple, about what on earth is taking these guys so long and why they want to go into the holiday week as they seem to want to? Yeah, I think it comes down to two words, birthright citizenship.

29:39If we win, birthright. And when I say we, I mean we who agree in a multiracial, multiethnic democracy where bigotry is not part of the constitutional law, right? And when I say them, I mean mouth-breathing racists who got their asses kicked at Gettysburg and haven't gotten over. So that's the distinction. If the we win birthright, what does that do to the media on the way out the door? So the court can put themselves in a position where they can win on birthright, uphold birthright citizenship, and then run out of town, and then you've got three months of mainstream idiot media being like, oh my god, the court is so impartial.

30:25Sometimes you do Republican things, sometimes do the democratic things, but really they're just trying to do the law. Like you get three months of that ridiculously bad narrative. Well, and it's three months and they leave and then it's the 4th of July. And so that dominates the kind of coverage of the 4th of July. I think that's a good theory. John Roberts in his office stroking a hairless cat. I did it. I did it. In the alternative, if we lose birthright, one of the things you have to remember is that these people are cowards. And if you're going to take away a constitutional right, taking it away and then skedaddling out of town before anybody can...

30:59On a PJ. Right, and just going to, as you were calling them, their emotional support billionaires, and getting out of town before the reaction to that happens, and then by the time they come back to work in October, people will be all into the election cycle. They'll kind of get away with it. So whether or not we win or lose birthright, I think dropping birthright and then leaving is their idea. Yeah. Okay, so let's go into the opinions we got. We got three last Thursday. One was in the case that we actually focused on during our live shows in California. Yes, ladies and gentlemen and non-binary listeners, this is your Supreme Court and this is your Supreme Court on drugs.

31:44because we got the opinion in United States versus Himani, where the court held that the Second Amendment does not allow the federal government to disarm people just because they use drugs in violation of federal drug laws. The intro was something of a joke. The outcome here is pretty sane and, in my opinion, probably correct. But, of course, the court gave all of the wrong reasons for reaching said right result. So the result in the case was unanimous, and Neil Gorsuch had the opinion for the court, which probably gives you a clue about how the opinion read, as Leah said. Right outcome, wrong reasons.

32:18And importantly, the majority emphasized that it was a very narrow ruling. All the court did was reject the Trump administration's view that the federal law could prohibit unlawful users of controlled substances from possessing firearms. The court emphasized it wasn't addressing questions about firearm possession by people who are addicted to drugs or firearm possession by people who are presently intoxicated. Brett Kavanaugh.

32:46I will say that in rejecting the Trump administration's arguments here, the court made clear that yes, it is actually more amosexual than the Trump administration, which is saying something. right the Trump administration had argued that the government could ban unlawful controlled substances users from having guns and this wasn't the first time that the Supreme Court actually was more ammo forward than the Trump administration this also happened a few terms ago in Garland versus Cargill that was the case where the Trump administration argued that federal gun laws allowed them to ban bump stocks and the court said nope nope not at all because ammo sexuality right?

33:29Love wins.

33:33So because this is a Gorsuch opinion in a Second Amendment case, the court applied its ridiculous history and tradition test from NYSERPA versus Bruin. Under Bruin, the court asks whether federal law at issue in the case is sufficiently similar to and consistent with the nation's historic tradition of firearms regulation. That's right. No matter how many times you say it or hear it just never makes any sense. Gun laws today have to look like ye olde gun laws, no matter how different everything else looks today, or the laws get struck down. That is the test. That's what the court applied here. The administration argued that historical laws that disarmed habitual drunkards and vagrants and the like were sufficiently similar to the federal law at issue in Hamani to satisfy the Bruin test.

34:20But the court said, no, these laws, those laws were all different. although the reason that the majority gave for why those analogues were not analoguing were pretty unconvincing. Okay, Ellie, how much credit does Neil Gorsuch get here, especially for rejecting a view that should have been rejected, but for using these wildly unconvincing reasons and a really damaging and destructive method to get there? Look, I fundamentally agree with Neil here. When you go back and look at Richard the Longshanks and whether or not he could have his sword on. It's incredibly stupid. It's incredibly stupid that in the year 2026 we have to go back to habitual drunkenness laws around the founding to figure out if somebody can have an Uzi.

35:06That's just dumb. Now, the problem is that when you make that dumb argument, yes, Gorsuch is totally capable of ripping it to shreds as he should, right? Because there's no way that you can argue realistically that the Americans at the founding were not completely sauced when they were like, hey, let's take on the British. We'll kick your ass. Like, that's not a sober decision, right? Nobody's stone cold sober being like, this tea overboard, yeah, take that. That doesn't make no sense, right? So of course, of course, people at the founding were drunk while armed. That's a thing that happened. And if you're going to say that because that's a thing that happened literally 250 years ago, then that's a thing that has to happen now, well, then you're done, right?

36:03And so I think Gorsuch was right to rip up the analogy where I'll give him a little bit of extra credit, and I can't believe I'm saying this about the last justice of the Mohicans but I manifested this

36:21but he was he didn't get tripped up on the difference between alcohol and weed right he didn't get tripped up on the difference between intoxication he knew he I don't know if he's had some Colorado candies in this past I don't know but like he didn't he didn't let that stop his analysis. He went, he analogized correctly the modern day use of marijuana to the historical use of alcohol and just kept on going. So I'll give him a little bit of credit for not having the hanger like lodged so far up his ass that he couldn't see that. So Ellie already gestured to the founding fathers being sauced and it turns out Neil Gorsuch really agreed with that.

37:00So this opinion is basically a callback to Neil Gorsuch's greatest hits from the oral argument in Himani, which, if you recall, was basically giving what if Pete Kegsbreath were a Supreme Court justice vibes, the founders were totally frat bros energy. So here is chapter social chair Neil Gorsuch at the oral argument. Bitchul drunkard, the American Temperance Society back in the day, said eight shots of whiskey a day only made you an occasional drunkard. We have to remember the founding era, if you want to invoke the founding era. To be a habitual drunkard, you had to do double that. Okay? John Adams took a tankard of hard cider with his breakfast every day.

37:48James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn't much of a user of alcohol. He only had three or four glasses of wine a night. Neil Gorsuch was a theater kid, right? 100%. Look, he's right, of course, but you notice how he doesn't finish the sentence, right? But he wasn't the only one who was really bought into this. So Chief Justice John Roberts, noted institutionalist, allowed Neil Gorsuch to write this opinion and to memorialize this episode of drunk history in the annals of the United States reports. And to be very clear, Gorsuch takes this opportunity to go on and on and on about this culture of copious drinking that existed at the founding, including all of these anecdotes about how Madison and Jefferson and Adams were just chugging and chugging and chugging, which happened to be a lot.

38:47It does prompt me to ask, though, when this court is taking up the 14th Amendment, are they also willing to talk about how many people these folks owned at the time? Because it was also a lot. Like, why won't we talk about that? No. It's actually illegal to talk about that, Melissa. Neil Gorsuch's personal episode of Drunk History was just focused on how the law protects America's history and tradition of getting hammered. Ellie, do you think Brett Kavanaugh had any qualms about joining this opinion that basically normalized being shit-faced? I do not Brett Kavanaugh likes to join opinions that justify his own behavior there was the opinion earlier a couple terms ago where he legalized bribery because we believe that he's probably kind of into that as well so I don't think Kavanaugh had a problem with that I think what the conservatives in the majority did that was really a disservice and you saw it even in that clip that you played is that they never finished the second half of the sentence.

39:52Yes, the founders were a sauce. They were also using rifled muskets. I would love to take the Pepsi challenge with that. Bring me Snoop Dogg, put him right here, give him a whole bong, and then let's see how long it takes him to reload a musket. Let's see. And let's see how many innocent people he can mow down while he has to reload the musket one ball at a time every time before he takes another shot, right? Like, that's the other part of the sentence that these guys never got to. Yes. No, absolutely. Yeah. And also, you know, we're not going to relitigate now two decades of Supreme Court Second Amendment jurisprudence, but they're not keeping guns at home for personal self-defense anyway, right?

40:41Like, firearm possession was in conjunction with militia service or potential militia service at the founding anyway, but obviously all water under the bridge at this point. But I do think their disinterest in the difference in firearms between the founding era and today is conspicuous in all of these Second Amendment cases. Did James Madison have a bump stock? Yes. Yes. You're not allowed to ask that is the problem. So the history of these heavy drinking fratty founding fathers was not the only aspect of the oral argument in the case that then surfaced in the opinion. In fact, Justice Gorsuch included a number of callbacks to the oral argument.

41:14And just to refresh your memories, here's a snippet from one of the other memorable moments in the Hamani oral argument. Justice Sotomayor asked you about someone who takes Ambien to sleep. So let's assume that someone takes their spouse's Ambien prescription. The spouse takes it too, lawfully, with the prescription. But then, you know, you take it unlawfully because you break into your spouse's Ambien jar. Yes, that is Amy Barrett asking a hypothetical about when a hypothetical spouse pilfers from the other spouse's hypothetical jar of Ambien. Well, guess what? Although he hangs with the originalists, Neil Gorsuch is not very original.

42:02He he-peated Amy Coney Barrett and included an Ambien hypothetical in the opinion. Sir. Sir. It's so oddly specific, right? It is! Also, Ambien doesn't come in a jar. So, if you have a jar of Ambien, you've got bigger problems. Yeah. It was obviously an Amy Barrett Easter egg. It did make me wonder, was it intended for us? does he hate listen and does he know how much mileage we got out of that ambient hypothetical on the pod or is he also ambient maxing now maybe out of a jar all right there were also some concurrences in the himani case that were absolutely wild and we really have to talk about them but before we get to them we want to play a little game with you, the audience.

43:04Are you ready? Okay. So it's just like law school. We're going to ask the questions and you're going to shout out answers. Okay, are you ready? This is just a teaser to the longer game we're going to play later. To warm you up. These are warm-ups. Okay, all right. And if you get it wrong, they'll make you cry. Maybe that was just me in law school. No, yeah. I think Elena Kagan is a tougher user of the Socratic method, at least than I am. Speak for yourself. Okay, right. I'm sure Melissa has made students cry in her day. I would not be surprised. Okay, question. Which justice used his concurrence in Himani to normalize weed usage?

43:44Shout it out. Yes, you guys read the concurrences. Justice Samuel Alito. Stay tuned. We are going to come back to this. Which justice wrote about taking a mild gummy?

44:03it was Neil Gorsuch or as we're now calling him Neil mild gummy Gorsuch that was too easy because he actually discussed that at oral arguments he talked about gummy yes bears he said gummy and then he quickly added bears so it didn't sound like he was too comfortable with just references to gummies in addition to the mild gummy reference the opinion noted the proliferation of state laws obviously decriminalizing marijuana and federal downgrading of some marijuana from Schedule 1 to Schedule 3. It also observed correctly that millions of Americans regularly use marijuana and that all of those users are certainly not unusually dangerous, which prompts me again to reference the butterfly meme that Melissa already referred to and to ask is the kind of discussion of the millions of contemporary marijuana users, is this originalism?

44:51Is this history and tradition? no I think the answer is no but okay back to the concurrences because it is time for an evergreen segment which is we need to talk about Clarence Thomas

45:11I'll begin so in Hamani Justice Thomas wrote a concurrence where per usual he said that he would go further. And for context, four years, Justice Thomas has had a bee in his bonnet about the Commerce Clause. So the Commerce Clause is part of Article 1, Section 8, and it authorizes Congress to regulate interstate commerce. And it has been a major head of congressional authority for enacting legislation, including major civil rights legislation. Now, obviously, Justice Thomas has a problem with the people's elected representatives enacting laws to protect the said people from rampant discrimination.

45:52So for years he has argued that the Commerce Clause should be limited. And in this concurrence, which nobody joined in Hamani, Justice Thomas decided to hard launch his view that the Commerce Clause does not allow or authorize Congress to enact federal gun legislation solely because it is not enough for guns to travel in interstate commerce. That's not enough to trigger the Commerce Clause. I will just say that if this theory is accepted, it would not only invalidate the law in question here, but maybe other federal gun laws, it likely would also invalidate other civil rights laws that are enacted under the Commerce Clause.

46:36So this is another one of those cases where Justice Thomas decides to sow a few seeds for the future. Boo. Boo his. I can't emphasize how insane his argument is. Again, as Professor Murray just explained, right, the interstate commerce clause is not something that you need to go through three years of law school to understand, right? If something is going from one state to another, that means the government has the right to regulate that. And Thomas is saying, no! Just because something is going from one state to another, that's not enough to regulate from... Like, what the... Is he talking about?

47:18It makes absolutely no sense. It's like the... I'm trying to think of an analogy for exactly how stupid this is, and I'm falling short because it's the dumbest thing that I've ever heard. Like, you can't... How could you possibly say that being in interstate commerce does not trigger the interstate commerce clause? Right? It says like... It's like saying being pregnant does not trigger you being pregnant. No. You are pregnant. It's there. We can all see it, right? And so and so when you so then what you have to start to think through is like what kind of insane person writes this down? Like what kind of addled person like puts pen to paper to write this down and explain to the entire world how insane he is and then you remember his billionaire support friends, right?

48:13And then you remember that Clarence Thomas' entire, almost now 30-year history on the bench has been as the troll under the bridge. The poison pill, you know, I like to say, the shit in your ice cream, right? Like, you know, you can have the beautiful sundaes, just a little corner of shit, just right there. And you can't unsee it. You can't not know that it's there. And he's been incredibly effective because he will make the argument that is ridiculous in his time, but then over the course of years or decades, the rest of the conservatives can rally around and push his insane idea forward. So the reason why this concurrence is here, insane though it may be, is that he's telling the Wayne LaPierres of the world, this is the next front.

49:03The next front is to fight the government's ability to regulate guns at all. That's what he's giving out. And he knows he's going to lose now because it's stupid. But he has shown over the course of his career that just because he's stupid doesn't mean he doesn't win. So I think it's important to underscore this is the theory would invalidate all federal gun laws. And as Melissa alluded to, maybe all federal civil rights laws because the Commerce Clause is the constitutional foundation for those laws too. And maybe that actually is the long game. that Clarence Thomas is playing. Happy Juneteenth!

49:39Exactly. One other small detail about the concurrence that I just have to mention. At the end, Thomas says, hey, it's been 26 years since we struck down a law under the Commerce Clause, and I'm just jonesing for a little Commerce Clause action. That's an actual argument he kind of makes. He thinks the court is going through a Commerce Clause dry spell, and Clarence Thomas is horny as fuck for a Commerce Clause freak off. Here's my actual hot take. The thing for last week's opinions was that the girls are fighting. There were a ton of intra-right-wing fights about what the right-wing dogma is. So in Himani, there's this intra-right-wing fight about the Commerce Clause.

50:26Should we use the Commerce Clause to take us back to the Stone Age? Clarence Thomas says yes. Sam Alito says no. Then there was another intra-right-wing fight about whether the right cares about the Second Amendment or prosecutors more. Here, Justice Thomas is suggesting maybe let's take down all gun control laws. Sam Alito writes separately to say, no, I actually like laws that prohibit felons from possessing firearms, and that's going to lead to a divide between him, Thomas, Gorsuch, et cetera. I love that. Can you guys explain to me why my former professor, Elena Kagan, joined Alito's concurrence?

51:02Yeah, because she wants to capitalize on the intra-right wing fights and basically ensure that the court doesn't strike down felon in possession laws. And so my guess is she was encouraging Sam Alito along and thought, OK, I'll like sign on to this and kind of make him own it. Yeah, yeah, that's a ticket. Right. You're doing amazing, sweetie Sam. You're doing amazing. Such a big, strong man. All right. Oh, God.

51:38Susan Collins made me do it. No, I'm laughing because it's just... Zero regrets, Melissa. Zero regrets. So many concerns. I'm laughing just because, like, it's embarrassing how easily it is to handle men, right? Like, that would work on me. That does work on me, right? Like, that does work on me. I was used car shopping with my wife yesterday, and she was literally just like, no, I was like, that car's too big. And she was like, no, honey, I think you can handle that kind of thing. I was like, yes, I can, in fact, handle it. You're right. All right. There are two other concurrences that we should mention.

52:17The first concurrence was by Justice Jackson, who was joined by Justice Sotomayor. And per usual, Justice Jackson continued her righteous crusade against the incredibly fakakta and terrible Bruin history and tradition test. And she argued. The drunk history and tradition test. The drunk history and tradition test. So she argued that the court should abandon Bruins' drunk history and tradition tests and instead return to the tests that had been in place before, which is basically a means and ends test where effectively those considering and reviewing firearms regulation have to think about why the law was passed in the first place and then consider whether the imposition on the Second Amendment right is justified, given what the legislature is trying to achieve.

53:10seems very normal and reasonable definitely not going to get five votes right nope nope all right um ellie what did you think of kbj's concurrent i know you're vibrating so i know you've got ideas i love this concurrence i love it on two levels right one it is juneteenth that's the blackest ass concurrence you're going to see right because it's it's a little it's a little bit of like she's saying, you know what, I do not truck with Bruin as a staff, label, or motherfucking crew. Like, she is gonna object to Bruin for the rest of her fucking life, and she's never gonna let you forget it, and I just, I love that aspect of it, to just object and object and object every single time, so that's really cool.

53:55But the other thing, the reason why that concurrence is great is that it gives you the other answer for how to reach this conclusion that everybody up here agrees was the right conclusion, right? And so one of the ways the originalists sometimes try to get people, try to trick people, is that, well, if we don't do originalism, what else can we do? There's no other way. No, idiot. There's always another way. And Jackson lays it right out. As she says in her concurrence, we could have decided this case by asking familiar questions that we used to ask before we did this dumbass brewing thing. And one of those questions from this case would have been really simple.

54:31does smoking weed make you a greater risk to misuse handguns? Does anybody think that it does? I mean, like, does anybody in their right mind think that smoking weed makes you more of a danger to have a gun? Okay, so I'm going to interject right here, because not only did KBJ say this, it's also something that Alito said in his concurrence. Like, so maybe the girls aren't all fighting, right? So Justice Alito also wrote a concurrence in which he was joined by Elena Kagan for the reasons that Leah has suggested. And basically in this concurrence, Justice Alito talked about how marijuana use has basically become normal.

55:13Lots of people smoke a doobie and sometimes a doobie is just a doobie, said Justice Alito. I'm paraphrasing, obviously. That shouldn't stop them from having guns, obviously. I read this concurrence and I seriously thought he was fucking with us. Like, I mean, this was wild to me. I just did not have Sam Alito writing a concurrence that rested on the normalization of pot on my October term 2025 bingo card. And yet he wrote, quote, marijuana consumption is increasingly common in this country. It is widespread and increasingly considered socially acceptable in many quarters. is this the rapture or is this just what working with Neil Gorsuch does?

56:00Wait a minute. Imagine having a wife who is so exercised about the pride flag, but you're totally cool with marijuana. Also, everything is so personal with him, and it does feel like there just must be some people in his life who are recreational marijuana users. I don't think in his immediate household, like he and Mirth Anne, although I guess you never know. But it felt like maybe that was it. See, I'm not going to give Alito. I'll give Gorsuch credit. I'm not going to give Alito credit. And the reason why is because I think he writes that concurrence specifically because he still wants to put brothers in jail.

56:36Like, people need to remember what the law is actually used for. I saw a lot of the media saying this is the Hunter Biden statute. A little bit different. I don't want to get into the weeds with that. But the way this law is used most often, let's say, right, is the cops stop somebody. They think that they're a drug dealer. They think they're a gangbanger. They think that they're a bad guy. But they don't got anything on them, right? They don't have any crime that that person committed. They stopped somebody for driving while black, and the taillight was just out, right? But what they do find is a gun.

57:10All right, we're going to get you on a gun charge. Wait a minute. Your gun is licensed. Damn. All right. Well, you have a dime bag. We're going to get you on the drug charge. Oh, man, it's just a misdemeanor. It's two ounces of pot. Oh, but you got the pot and you have the gun. Now you can go away for 15 years. And the carceral state starts going, right? Because you've got a drug offense with the gun, even though it's a legal handgun. Now you can get the carceral state rolling on the person, right? And this opinion takes a big chunk out of that carceral state because weed is so ubiquitous. But there are other drugs that Alito is still trying to leave space to be like, all right, we're going to let you off on the weed because it's habitual, because it's like alcohol, because what?

57:54But the crackhead, no, no, no, your ass is still going to jail for 15 years, right? That's what he's trying to still leave space for with this concurrence. they still want to be able to stop people for minor infractions and then ratchet up that infraction to 15 years in jail, which starts an entire carceral process. One other possible theory, which that all sounds very plausible, is that there were echoes, I thought, in the Alito concurrence of this dissenting opinion from Justice John Paul Stevens in the case that is colloquially known as the Bong Hits for Jesus case, which some people might know.

58:28That was a banner that some high school students held up and then were punished for doing so. And they raised a First Amendment claim and the court ruled against them. But Stevens dissented and just wrote this amazing dissent that was like, talked about his own childhood in Prohibition because he had lived through it as a kid. And basically said, essentially, you know, our war on marijuana now is a lot like our experiment with outlawing alcohol when I was a boy. And we're going to kind of come around. And anyway, my very charitable view of the Alito concurrence is that he's come around to the Stevens position.

59:00So it's at least possible. I think Ellie will take. Keep telling yourself that, Ellie's take. Or just Ellie's take. Let's take a vote. Who's with Ellie? Okay. For those listening at home, the audience is with Ellie too. Who's here for Kate's Justice Stevens advocating for term limits? Thank you. I see a few hands in the crowd. Real ones. Thank you. So we did get two other opinions. Just going to quickly summarize them. This was kind of a Fed court's fest. In one case, Hunter v. United States, the court said 8 to 1 that even though a plea deal with the government agrees that the defendant won't appeal their sentence, that doesn't prevent a defendant from appealing a claim that would result in a miscarriage of justice.

59:45This case involves some intra-right-wing fights between Justices Barrett and Thomas in particular about supervisory power and procedural common law. Again, stuff that really matters to the right. Then the second opinion was the Rooker-Feldman opinion. I know you all wanted us to spend the entire episode on this. I apologize. This case, TM versus University of Maryland medical system. the court held five to four that the so-called Rooker-Feldman doctrine applies to state court trial and intermediate appellate decisions. So Rooker-Feldman had said you can't appeal or effectively ask a federal court to invalidate a state Supreme Court opinion, and TM said that applies to state trial and state intermediate appellate court decisions as well.

1:00:37This too involve the intra-right-wing fight between Justice Thomas and other Republican appointees since Justice Thomas wanted to take the position that Rooker Feldman is correct, which... That tracks, because everybody hates Rooker Feldman. Exactly. Exactly. Exactly. So the intra-right-wing fights are this kind of theme that Leah has identified as linking the three cases we got last week we're talking about today. There is also like a lower brow through line, which is these are all cases about drugs. Okay, RF Kate.

1:01:15Hunter is a case about the individual wanted to appeal a condition of a sentence which involved taking medication he didn't want to take. And actually the Rooker-Feldman case also had to do with involuntary confinement and the administration of antipsychotic medication. So that is another potential through line for the three cases. Potential. Potential. Yeah. Strict Scrutiny is brought to you by First Day. Feeling off day-to-day isn't always just Supreme Court-related stress. It's not even just stress. Whether it's low energy, mood swings, or just feeling run down, that can come from not getting the right nutrients consistently.

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1:03:31so we have one more topic that we want to cover before we let ellie off the hook for the rest of the night and that is scotus reform okay so you all in the audience are here on a saturday night to talk scotus why because because melissa oh thank you

1:03:54Thank you. But also, I think because you understand that something has gone very, very wrong at the Supreme Court. And yet, although you all know this, too many people still don't realize it. And there are definitely going to be a lot of end-of-term stories praising the court for slowing the pace of these insane pro-Trump decisions on the shadow docket, likely for rejecting the flagrantly unconstitutional birthright citizenship executive order and the lawless attempt to fire Fed Governor Lisa Cook. So it'll be great if those predictions just there come to pass, but this court will still be an enormous problem in need of a solution, and you all can be key messengers in helping push for a solution and in helping to bring people about to understanding that this court is a genuine threat to a functioning democracy.

1:04:50May I allow you to retort? Obviously, obviously, I think court reform is the most important issue facing our country, and it's the most important issue in the 2026 election, the 2028 election, the 2030. It is the thing. And the reason why, and I'll take it back to Louisiana versus Calais, the decision that, as you've all talked about, killed the Voting Rights Act. The historical doppelganger for Louisiana v. Calais is Plessy v. Ferguson. That's the case that affirmed segregation. How do you get over Plessy? How do you overcome the segregation in Plessy? Well, you have to have the 1964 Civil Rights Act.

1:05:33You have to have the 1965 Voting Rights Act. You have to have the 1968 Fair Housing Act. But none of that happens before you have the 1954 decision in Brown v. Board of Ed. You change the court first, and then you have the ability to pass all the legislation that you want to fix the problem. Changing the court doesn't fix the problem. It opens the door so the problem can be fixed. If you don't control the court, if you had in 1964 the same court that you had in 1896 when Plessy was decided, guess what happens to the Civil Rights Act? it gets ruled unconstitutional guess what happens to the Voting Rights Act it gets John Roberts guess what happens to the Fair Housing Act it gets Clarence Thomas like you don't get these laws these pieces of legislation unless you change the court first and that is the message that I try to give to every person especially young people and I say this all the time I can go to a bar in Texas I mean I don't like to go to Texas but like when I do I go to Austin but I can go and then just fly out like I'm not trying to stay.

1:06:44But I can go to a random conservative person in Texas and talk to them about the Supreme Court, and they will tell me, well, I don't know about no fascist, but I know I got to get my guns. I'm going to keep my guns. I got to keep my court. They know that, right? You go to a Democrat. I can go to Brooklyn, and I can find the crunchiest, hippiest, Birkenstock-wearing guy at a beer garden. Throwing axes. Right? And he can be like, oh my god, dude, are you using a plastic straw? You know, that's so bad, man. Like, microplastics are terrible for the environment. I'm like, yeah, I know. We have to have, like, a Green New Deal.

1:07:17Yeah, so we have to do court reform, right? Like, what? Court what? No, man, we just need a Green New Deal. Like, you don't get a Green New Deal if you don't reform the court first. Because if you don't do it first, then the Green New Deal gets overturned before breakfast by these people. Gorsuch and Alito fight over who gets to write the opinion, punting the Green New Deal into the sun. So, if you care about any of the brilliant, wonderful legislative fixes that you can think of to restore abortion rights, to restore the Voting Rights Act, to end gerrymandering, none of that matters if you don't take control of the Supreme Court first.

1:07:59Preach. You just preached a whole word. that was a whole word do you hear this? tell your friends tell your friends remember that time we went to the White House and we were like are you guys going to talk about Lee is having PTSD we were at the White House and we were like are you guys going to talk about court reform in the upcoming election this was after Dobbs we don't think people can understand it you know what they can understand? not having rights we have a ways to go in kind of getting people on the legal and political left to understand how central the Supreme Court is. But I do think that Ellie is going to help make hot Supreme Court reform summer happen.

1:08:41And so can all of you. Thank you.

1:08:51Nothing but respect for my Chief Justice. Ellie Mistal. That is the Supreme Court reform that we need. I mean, Ellie Mistal replacing Clarence Thomas.

1:09:08Manifest it. Manifest it. You heard it here, folks. All right. Let's go very quickly through some legal news. We are going to start first with some legal news made possible by John Roberts and Co. So first of all, we're going to begin by laying the blame for the return of the insurrectionist slush fund right at the feet of John Roberts & Co. Hear us out. So in the immunity decision issued a few terms ago, the court told President Donald Trump that he had unfettered plenary authority over investigations, prosecutions, and the DOJ. What could go wrong? The slush fund for January Sixers is how the president, in tandem with his auditioning attorney general, Todd Carte Blanche, have wielded that power.

1:09:57Yeah, and then second, in a bunch of shadow docket orders, the court turned its cheek to very substantial allegations that the Trump administration had defied lower court orders, even going so far as to grant the administration extraordinary and discretionary relief from orders it had very likely defied. So what did Todd Blanche do this week? He said, fuck you to the federal courts, just as Emile Beauvais, now the dark lord of the Third Circuit, but previously a high-ranking official at DOJ, had allegedly encouraged the administration to do if and when courts tried to stop them. And in one of the cases challenging the slush fund, the Eastern District of Virginia concluded the case was not moot and enjoined the administration from moving forward with the slush fund unless Blanche submitted a declaration saying the slush fund was indeed dead.

1:10:55Well, guess what? Carte Blanche decided not to do, to submit that declaration. Instead, the department submitted a filing stating that such a declaration was unnecessary. It was frankly rude for the court to even ask. Quote, literally from the pen of John Roberts in the immunity decision. Quote, such declarations are unnecessary, and the compelled testimony of senior officials from the executive branch implicates serious separation of powers questions. Oh, really? These are the separation of powers questions you have. I mean, this is giving a ton of Sheree Whitfield, who-gon-check-me-boo vibes, right?

1:11:36Yes, if you've been at this pod before, you know. It does make you wonder, why would Todd Blanche not want to submit to a federal court in writing, under penalty of perjury, a statement saying that the insurrectionist slush fund had been dropped off at a local fire station in a lockbox and was now abandoned? Why wouldn't he do that? Why would he be afraid to do so? Is it possible that maybe the insurrectionist slush fund is going to make a comeback like Jason in Friday the 13th? Is this possible? Yeah. It also does make me wonder, though, why is he writing things in briefs that he won't swear to under penalty of perjury?

1:12:24Like, what are these legal briefs to you, glorified blog posts? it's just bananas. Okay, a little bit more legal news to cover. And one is, I think, maybe complicated but mostly happy news, which is we did get the restoration of the John F. Kennedy Center for the Performing Arts. Let's go! I mean, there was something quite profound about kind of getting to see the removal of Trump's name from the Kennedy Center. You know, this kind of ruling and then its implementation was honestly a concrete reminder that the courts, and in particular the lower courts, do matter. And it did feel like this kind of tiny taste of what it could be like post-Trump as we try to undo the damage, physical, structural, and constitutional, that this administration has wrought.

1:13:18and also how hard they're going to fight to prevent that as evidenced by the fact that they put tarps up to cover the removal of the name and it's still not entirely clear that all of the letters are gone because we haven't been able to confirm it with our own eyes. All right. There's so much news to cover and we don't have all night in this theater. Let's just be honest. We've got to let you guys go home at some point but we could not let you leave without covering the fact that our president, the commander-in-chief, lost a big old war this week.

1:13:58You think I'm talking about the war with Iran and the memorandum of understanding that basically gives Iran money to rebuild, allows them to continue operating the Strait of Hormuz and maybe eventually charging fees for it and maybe continuing to have nuclear capabilities, all things that we said we got into this war to stop. I'm not talking about that war. I'm talking about the president's war with mother nature and possibly the color wheel, right?

1:14:31Yes, listeners, this is a reflecting pool subtweet. Yes. We cannot get enough of this story. Can you? Like, it's just too good. So as we have obviously talked about, and I'm sure you're all aware, Donald Trump undertook a$14 million renovation slash defacing defilement of the reflecting pool this spring, only for said reflecting pool to be immediately overtaken with algae. Sometimes nature is healing. Yes. But obviously the swamp story got even swampier this past week when the Times reported that a contract to purify this algae-ridden reflecting pool was awarded outside of the competitive bid process that is standard for most National Park Service's contracts to a company held in trust by a Trump friend and donor who also happens to be the president's neighbor at Mar-a-Lago.

1:15:22And because it always gets worse, said recipient of the million-dollar no-bid contract had previously been convicted for bribery. And the piece de resistance is that the name of this company is, and I'm not making this up, Green Water Services.

1:15:48They tried to tell you. All right so to close out this segment I think it's time to offer some unfiltered thoughts about the reflecting pool. Leah why don't you go first? I love this. This is the new MAGA, Make Algae Great Again. I did wonder, did Greenwater Services sign a memorandum of understanding with the algae in Versailles, right? Like unconditional surrender to the algae, just like the memorandum of understanding is a worse version of the deal that Barack Obama made with Iran. This, Greenwater Services, is a worse version of a Green New Deal. This is their Green New Deal. Yeah. That's all I've got.

1:16:49So in addition to turning the reflecting pool Shrek green, there's also the fact that Greenwater Services was also charged with refacing the pool. So they had to repaint it. And now it seems like the paint is peeling. Like, the reflecting pool was fine. There was nothing wrong with the reflecting pool, right? I mean, this, again, is the president's edifice complex writ large. It's like, sir, we didn't need this. But if you're going to pick someone to do it, maybe pick someone who's good at his job. But you can say that about the whole cabinet, right? If you're going to do it, pick someone who's good at his job.

1:17:30And I mean, you know, just a sort of prosaic observation, but I think an important one is that we do have, you know, as like uninteresting or unsexy as it is, like we have processes in place for a good reason. Like there's a bid process to make sure that people who get these contracts know what they're doing. And if there is a silver lining here, I think that government processes and government workers can get a bad rap, I think, in a cross ideological fashion. but like maybe the complete hash that these unqualified like lackeys have made of the reflecting pool and oh the federal government writ large will remind everyone before it is too late of the value of a federal government that is merit-based and it actually does the work of the laws and the people so again Kate that is my hope for the reflecting pool but I honestly I honestly didn't think you could do it, but you have managed to wring a silver lining out of the reflecting pool.

1:18:26And can I applaud you? And then if we can all get a little piece of the blue paint peeling from the bottom just as a souvenir, I think we'll be doing all right. This was a DEI contract, a true dicks, ex-husbands, imbeciles contract. Absolutely. And we are seeing the effects. Yes. And just to take it back to the Supreme Court for a second, you know, Kate, you were talking about how government can and should be full of experts based on merit. When, not if, the Supreme Court overrules or just limits Humphrey's executor and gives Donald Trump the power to control who heads all of these agencies, they are going to be making it possible for him to install people at these agencies who will engage in this kind of grift and make government just a spoil system rather than a meritocracy run by experts.

1:19:18I love the Gilded Age. Yeah. The re-Gilded Age. Good news. It's coming back. Yeah. Okay. So as we always do at the end of our episodes, we will offer our favorite things, and then we will have one favor to ask of you. So I will start with the favorites. My favorite, one of my favorites, was Barack Obama's speech at the opening of the presidential center.

1:19:47specifically the part where he shouted out quote those ordinary people in the twin cities who braved frigid temperatures risked their own safety standing shoulder to shoulder to look out for their neighbors and sometimes for strangers because they knew that was the right thing to do

1:20:09we actually have some people in the audience tonight from Minnesota so wanted to shout them out as well um one other just small thing sappy note uh so this past week the three of us um learned that an article that we have co-written that we've referenced on the podcast but haven't actually released into the wild was a recipient of the American Constitution Society Kadehi Prize for regulatory and administrative law. And in like a very rare against type silver lining positive message for me. I just wanted to encourage everyone to find their own people. Like women working together is incredible. Professional networks of women, female friends are the best and I feel like one one of the reasons why you know I wanted to we wanted to start the podcast I'll just speak for myself is like this persistent feeling that women are just undervalued in the legal profession the legal Academy and so creating this space where we could do our own thing and do it for ourselves was just a wonderful opportunity and I am just very grateful for all of the things that have come from it.

1:21:48Amen. Second to everything Leah just said and she mentioned President Obama's speech. I'm at the opening of the Presidential Center. I will also mention Michelle Obama's speech there. And it was extraordinary. Watch it. You'll cry. I am sure. It'll get both joy and trauma that we have come so far from sort of what we saw on display in the opening of that center. And just on a quick personal note, so all the former administration staffers from the Obama administration were invited to go to the opening last week. And I was a lawyer in the administration and I got an invitation and I had all of these like end of school year obligations with my kids and I didn't think I could swing it, so I didn't go.

1:22:28And so I've watched with a heavy dose of FOMO all of the incredible videos and images from the center. But I mean, I'm kind of glad I just got to experience it the way everybody else did. And I have to say that in the same way, we started with the Knicks, we'll end the show with the Knicks, but the victory and the kind of ensuing joy felt like it restored some balance in the universe. It did feel like the opening of the Obama Presidential Center in Chicago was like the real 250th anniversary the country deserves.

1:22:58We have been better before. There's no guarantee, but we can be again. It's going to take a lot of work, but I did feel a lot of optimism in the last week. And even though I probably feel more than my co-host at times, it was much more than even I have felt in a long time. And I'm grateful to the Obamas and the folks who put all that work into making that center such an extraordinary place. go see it if you haven't. That's all. Maybe one related piece I'll say. Since the end of our show is off in a Jamel Bowie appreciation space, he had a recent column, Obama and Mamdani show how it's done, which I think just sort of encapsulated a lot of the themes I just shared.

1:23:38So those are my favorite things.

1:23:44So going last means that you're pretty much plus one-ing much of what was said before. So I will plus one. I really enjoyed the Obama speeches. at the opening of the Obama Presidential Center. I loved seeing Malia and Sasha all grown up. So cute. All of this, I thought, was an antidote to the nonsense that we saw on the White House lawn earlier this week. And I don't want to bring down the vibe, but it's Juneteenth, so I'm going to call it out. I know a lot of people were really incensed about Josh Hokett's vile remarks about Mrs. Obama, and I'm just going to implore you to let it go, right? That man has a painted-on beard and looks like a thumb, right?

1:24:32He's got bigger problems. He got bigger problems. Forget him. If it really makes you mad, and again, this is not me doing a Michelle Obama, when they go low, we go high, because I firmly believe when they go low, we go to hell.

1:24:50But it just shows how the Obamas who are classy and elegant and brilliant just live rent-free in these people's heads because they know they will never be like the Obamas. They will never be like the Obamas. And it kills them. And it kills them. So if you really want to get them where they live, instead of talking about what he said, go to Netflix, download Becoming, and put it on a perpetual loop for the whole weekend, which I may or may not have done, and allow it to go to number one on the Netflix chart.

1:25:30Because that listeners is how you clear a bitch, okay? By being elegant, unbothered, successful, moisturized, and on top of the Netflix charts.

1:25:47And I just want to shout out some folks who worked with me recently. The audio book for my recent book, The U.S. Constitution, a comprehensive and annotated guide for the modern reader. the audiobook was recently recognized by Kirkus Reviews and Audiophile Magazine with an earphone award for outstanding contributions to the audiobook medium. And thank you. So I read the annotations, but I really want to shout out the great Dion Graham, who actually read the text of the Constitution, was my co-narrator on the audiobook. And I especially want to thank Karen Perlman and the rest of the audiobook team at Simon & Schuster who are here tonight for their outstanding work.

1:26:34I could not have done this without you. You were fantastic. Thank you.

1:26:43And of course, New York, we couldn't have done all of this without you. So this is the greatest city in the world.

1:26:58Stricties are the greatest audience in the world and we have one last favor. We have one last favor to ask. In addition to downloading us on all of your favorite podcast mediums and giving us a five star rating because if you don't we are going to assume you are not a modern reader. And also the next live show. We got to shout out the next live show. And buying tickets for the next live show, which is going to be in November in Washington, D.C. at Crooked Con. It's going to be so fabulous. But before you do all of those things, can we take a selfie with you? Yay! All right. Thank you, New York!

1:27:50Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Rowell and Michael Goldsmith. Jordan Thomas is our intern. Our team includes Matt DeGroat, Ben Hethcote, Johanna Case, Kenny Moffat, Eric Schutt, and our music is by Eddie Cooper. Our production staff is proudly unionized with the Writers Guild of America East.

1:28:19. . Thank you.