Will SCOTUS Keep Trans Kids Out of Sports?

24:37A statute that bars speech annoying the president can't constitutionally be applied to anyone because the standard it adopts is an invalid one. Whereas in an as-applied challenge, you're saying the law could be constitutionally applied to some people but not others, you and others similarly situated. Just as an example, a lot of courts have entertained as-applied Second Amendment challenges to laws prohibiting firearm possession by people who are convicted of felonies. If you were convicted of a felony that doesn't make you dangerous in the court's eyes or a greater risk with a firearm, the law might not be constitutional as applied to you, courts have said.

25:11But if you are convicted of attempted murder with a firearm, then it's probably OK to prohibit you and people like you from possessing a firearm. And Leah describes the state of the law accurately and actually like that explanation was, I think, actually very clear and accessible. I will say sometimes the distinction is more slippery than that. And frankly, it does not ever make perfect sense to me. So if you find the distinction in general terms confusing, I'll just say you're definitely not alone. You're not alone. I will note, though, that I'm old enough to remember when the conservative majority was absolutely fine with as-applied challenges like, say, in 303 Creative versus Elenis, when it framed the challenge in 303 Creative as an as-applied challenge in order to insulate a website designer from the force of Colorado's anti-discrimination law without actually having to say that, in fact, what they were doing was granting a broad license to everyone to discriminate against LGBTQ plus people.

26:06The dissent in 303 Creative basically said this is not an as-applied challenge. You're basically making a facial rule and facial determination. but the court was really into it on that particular ground. So again, they've been good on as-applied challenges in the past. In any event, the state and the federal government in this case seemed to be making an argument that the plaintiffs could not bring a claim of this sort under the Equal Protection Clause, and there was a bunch of debate about how to understand some of the court's equal protection cases. And even Justice Kagan at one point mused about this, describing the, quote, surprisingly unanswered in my mind, equal protection question about what an as applied equal protection challenge is and whether they exist.

26:50Although she also said it would be very wrong to craft some sort of bar as to as applied challenges in the context of equal protection, but she definitely floated the idea that it was a little sort of tenuous that it could exist. Well, or that the court's cases just haven't been that clear about like what kind of they are, spend most of their time talking about the substantive constitutional question. And when you sort of go back to them, you can make arguments like we should understand this as an as applied or we should understand it as a facial challenge. I mean, Josh Bloch, who was BPJ's lawyer, suggested actually that this facial versus as applied distinction needed to be rethought in the wake of the CASA case, the one that dramatically limited the ability of federal courts to issue nationwide injunctions.

27:29I'm not sure. Anyway, I don't know that needs to be totally rethought. But I do think that the question, the fact that there was as much airtime given to this sort of first order question of whether as applied equal protection challenges even exist was very concerning to me. Maybe they just exist for the First Amendment challenges against equal protection law. And men. Yeah. The law as applied to men. Well, I mean, don't say that though, because they do say overbred this okay in the First Amendment context, but not elsewhere. Yeah. So I think it'd be helpful for courts to clarify what facial challenges mean in a post-Casa world.

28:01But the idea that they are going to say, you can't do as applied challenges here or as applied challenges are somehow disfavored and more limited than facial challenges is deranged, like a total about face. The law until now has been that facial challenges are disfavored because they result in the total invalidation of a law. And the idea that they're going to carve out an exception for equal protection claims on sex discrimination because they really think discrimination against trans people is okay is, I think, so damning. Like, just an additional note on the whole as-applied challenge thing.

28:33You know, the states, a federal government, and the plaintiffs seem to want to cohere around a principle along the lines of you can raise as-applied sex discrimination claims as long as you are doing so on the basis of a sufficiently large group. That is, you can't say this law is only unconstitutional as applied to me. You'd have to say this law is unconstitutional as applied to this sufficiently large group I'm part of. Now, the plaintiffs obviously say trans women and trans girls are such a group, whereas the state and federal governments say they are not. To which I say, how can it be that trans women and girls are such a big group that it's super unfair to cis women to allow them to play sports, but not so big that they can raise as applied equal protection challenges?

29:13Riddle me this. Also, like the conceptual flaw they identify in as applied equal protection challenges applies to literally every area of the law because their beef is that sex discrimination claims are reviewed for intermediate scrutiny, which means the law doesn't have to be a perfect fit to absolutely everyone. It's only problematic if it doesn't fit with a sufficient number of people. You know what other challenges are reviewed under intermediate scrutiny? Some First Amendment challenges. Also, I didn't realize the wedding website designer in 303 Creative was part of this like vast group of people that like really don't want to design websites for like same-sex weddings.

29:50Or all the parents of Mahmood versus Taylor who are just fine with the storybooks. Like the list is so long and it's just very hard to see any other explanation. But the, you know, the claims that they're sympathetic to get to go forward. The ones they're hostile to don't. It's like that actually that's that's called law. Yes. Yeah. And because these guys like nothing more than slamming doors to possible constitutional claims they don't like, maybe they will say you can't bring these as applied equal protection claims at all. Again, all fates intertwined. Oh, I'm not manifesting that. They were making that clear.

30:20Well, don't don't encourage it. So another theme that was very evident at oral arguments is that the Democratic nominees know they're losing this case, and they were scrambling to contain the blast radius of whatever this decision is going to be. And they were very explicit about it, more so than usual, especially Justice Kagan. At one point, she asked the government's lawyers to help them think through what the limiting principles would be so that the athletes loss in this case would not reverberate more broadly than was necessary. So here's a clip of that. So if we didn't want to prevent a different state from making a different choice from West Virginia, what should we not say or what should we say to prevent that from happening?

31:10And let's use that Kagan clip to take us to a closely related theme. And that theme is, what happens next here? If the states win, obviously that's awful news for trans student athletes and basic principles of equality. But what else does it mean in terms of real world consequences? As Justice Sotomayor suggested, it would seem that by upholding these laws, the court would be watering down the standard applicable to sex discrimination, essentially allowing states to engage in some sex discrimination that might strike the justices as reasonable or rooted in biology or not so bad, as some of the justices in dissent had previously suggested.

31:47You can hear that here. You're asking the court to adopt views expressed by two minority dissenting judges in this case. We've been doing an awful lot of that lately. But you're smiling because it's true. So basically what this would mean is that constitutional scrutiny in sex discrimination cases would not change as a formal matter. It would remain nominally intermediate scrutiny. And the intermediate scrutiny standard requires that a sex-based classification can be upheld if it is substantially related to an important governmental interest. But the question would be, would courts accept justifications rooted in stereotypes or assumptions that claim to be rooted in biology?

32:34So that's kind of a complete reworking of the extant doctrine. And I think one that is very complementary to what the court did in Scrimetti when it completely reframed what it means to have a sex-based discrimination or not. So this is all of a piece and I think part of a bigger project and trajectory to completely unwind sex equality constitutionalism. Absolutely. And kind of on this sort of what comes next point, there is very much the possibility in addition to the kind of this potential doctrinal overhaul, but the specific kind of litigation possibility, which, Melissa, you referenced on our last episode and at the beginning of the conversation today, that the lower courts and ultimately the Supreme Court will be quickly faced with the argument that Title IX and or the Equal Protection Clause of the Constitution not only doesn't require but actually forbids states from allowing trans girls and women to participate.

33:28to play girls' and women's sports. This is something Kavanaugh asked about a lot. And, you know, actually not in the kind of let's hurry up and decide the kind of maximalist, yes, Title IX requires exclusion, in all cases, spirit. So let's play his question of the Idaho lawyer and then that lawyer's response. And those states who do allow it, are they – is your position that they are violating the Constitution, the Equal Protection Clause, rights of biological girls and women by allowing that? Or do you say that's up to each state to decide and that the Constitution gives discretion to the state whether to allow it or not to allow it?

34:15I have not yet been persuaded by a constitutional theory that would let us use the Equal Protection Clause to impose our policy on other states in this matter. All right. That was Idaho's lawyer. West Virginia's lawyer also gave a similar answer. Then the federal government's lawyer, Hash Mupan, made clear that they, in fact, already are seeking to bar states from allowing trans athletes to play. So let's roll that tape. Mr. Mupan, you talked about you are litigating this case the opposite way among states that do not prohibit trans women and girls from participating in sports teams. Is that correct?

34:54Yes. So note here that the lawyers for the states of Idaho and West Virginia are saying we are not taking a position that California has to bar trans athletes. But the federal government is signaling pretty clearly, hold my beer, folks. Once we win this case, we're coming for all of the 23 states that still allow these athletes to play. So that's one endgame. It's called federalism. For real. The new federalism, our federalism. No, there was this moment which was like, I wonder, I couldn't, I don't want to like too charitably read those state SG responses, but they actually did kind of seem to be channeling a little like genuine, not sarcastic, but real federalism to say like, but maybe that's me being too charitable.

35:36No, no, I think it's because like, we're not going to tell. in court every day for this administration arguing for the maximalist position. They're still in real law land where you're trying to convince courts to do something modest and incremental. Federal government, not so much. They don't litigate frequently enough before the Supreme Court to understand that the game has changed. Totally. That might be right. Yeah, those were surprisingly normal answers that both gave. And Hashmupon was like, no. Let me show you Yeah, it's done now. Go bigger. YOLO. Yes. OK, so also in the realm of the next case, not the next case out of California, but just kind of the next case in sort of more general terms, Justice Barrett had an interesting exchange with the West Virginia Solicitor General, which kind of reminded me of colloquy she had in both Brnovich, the Voting Rights Act case, and 303 Creative, which we've already talked about.

36:25So much so that I think this is actually now kind of a move of hers, although I think not deliberate, which is she gets an advocate on the side that she is likely to vote with to say some pretty crazy and unhelpful, I think unhelpful things. So here she is posing a question about sex segregated math class and Kagan then jumps in to bring in chess. So first let's play this kind of puzzling, at least puzzling in the responses exchange. I just wanted to ask if on your understanding of Title IX, you could have separated bisects classrooms in biology or in math based on some evidence that you have that say men are better at math and science.

37:01What are the limits to your Title IX theory? So I think your instinct there in part arises from the fact that we're skeptical of any notion that there are inherent differences. So I want to kind of acknowledge the real reality of this. Well, your whole position in this case depends on there being inherent differences, right? It does. Hmm. Okay. Maybe he just flipped what he meant to say. I'm not positive. Anyway, let's now play this clip, which was Kagan jumping in to follow up. How about chess club? A chess distinction, I think, again, might fail because there's an actual lack of evidence of meaningful physiological differences that are reflected in the existence of the express regulations in the athletics context.

37:37I mean, I think a lot of people would say, you know, if you look at the ranks of chess grandmasters, there are not a whole lot of women there. And, you know, what does that mean? Well, I think that there's a sort of intuitive, I think there are a lot of chess grandmasters who would tell you that women just like, for whatever reason, they're not as good as this. I think chess is an interestingly closer question. Neil Gorsuch tried to step in and do damage control, which deprived me of one of my few joys in listening to Supreme Court arguments, which is hearing Elena Kagan just absolutely flay some dumbass who's like, yeah, sex discrimination is cool.

38:22Unclear if his damage control worked. So ladies, maybe pack up your chessboard. States might be telling you you're out of luck. Queen's Gambit was such good fiction back when it was done. Exactly, exactly. Speaking of Neil Gorsuch interventions. It's for your own good, ladies. Exactly. Yeah. More Neil Gorsuch interventions. He came back to one of his pet projects, the spending clause. So Gorsuch seemed to be interested in exploring whether the court could decide this case by finding that because Title IX is spending clause legislation, that is, it's essentially a condition attached to money from the federal government, that a special clear statement rule applies and states would have to be on super clear notice that they couldn't bar trans girls and women and that here Title IX doesn't give that sort of notice.

39:06So last term in Planned Parenthood v. Medina, the court, in an opinion by Neil Gorsuch, did some real work to make the spending clause great again, by which I mean make it very difficult for plaintiffs to successfully challenge government action when spending clause legislation is in the mix and the basis for the plaintiff's claim. That was a case involving the Medicaid statute. The court seems poised to escalate that even further in a case that's pending this term, Landor v. Louisiana and a Department of Corrections case involving Arlupa, the Religious Land Use and Institutionalized Persons Act.

39:41That's a federal law against spending clause legislation that governs, among other things, religious rights of institutionalized persons and states. But kind of interestingly here, in part because the federal government really kind of tried to dissuade the court from going down that path, didn't seem likely that there was much interest in the spending clause theory. Possible Gorsuch writes separately about it, but I didn't think anybody else seemed particularly interested. Strict Scrutinies brought to you by Armra Colostrum. Are you feeling sluggish, bloated, not like yourself? Guess what, folks?

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43:16All right, let's take up another theme. I'm going to call this one, Who's the biggest transphobe in the room? And I'm going to say it was a tough competition. Obviously, one contender was front of the pod, Sam Alito. Going in, I think the smart money was on him as the winner of this particular contest. I'm going to play one clip where he is serving up what I think he thinks is a gotcha question for Kathleen Hartnett about all the many boys who announce that they are trans purely to get on the girls team, as one does. Let's roll it. All right. Suppose this school that has a boys, let's say, track team and a girls track team.

44:07The school has that. And a student who has the genes and the reproductive system of a male and had those at birth and has never taken puberty blockers, never taken female hormones, never had any gender-altering or affirming surgery, says, nevertheless, I am a woman. That's who I am. Can the school say, no, you cannot participate on the girls' team? Sorry, so you're just a birth sex male who has all the advantages of birth sex male hormones, and can the school borrow him from the women's team? Yes, they can. But that person, is that person not a woman in your understanding? If the person says, I sincerely believe I am a woman, I am in fact a woman.

45:04Is that person not a woman? And here's Hartnett's response. I would respect their self-identity in addressing the person. But in terms of the statute, I think the question is, does that person have a sex-based biological advantage that's going to make it unfair for that person to be part of the women's team? And that's the rationale for the regulation. And so that's the way we would be testing that. This is an example of the excellent advocacy. It reminded me of the moment where, or many moments, honestly, where he thought he had a gotcha for Biden's Solicitor General Elizabeth Prelogger. Like when he asked her, you know, is a raw egg and a green pepper and some ham an omelet?

45:40And she was like, no, bitch, it's not because it could be other things. She didn't actually say that. But anyways, Kathleen Hartnett's response, you know, sounded to me in the same register. Another possible contender for many is Clarence Thomas, who also piped in with a hypothetical about the individual male who is not a good athlete. You know, maybe a lousy tennis player and doesn't make the team. And then he says, how is that different from what you're being required to do here? Another theme in all of this, I think was like more subtle. And again, it reminded me of the way the court used to talk about same-sex marriage before Obergefell.

46:19This idea of kind of counterfeiting and fraud, which is really interesting in the way the administration is now talking about fraud in the context of DEI and civil rights, what is happening. in Minnesota. But there was this real undercurrent in the oral argument that effectively everyone who is transgender is perpetrating a kind of gender identity fraud. And we are here to call them out on it. And it was just like really striking and deeply concerning. Such a good point. And also there were a couple explicit moments, I think, when both Kathleen and Josh said something along these lines. But it's all predicated on this idea that there's like the good teams and the bad teams and the good teams are the boy teams.

47:04And if you can't get onto the boy teams, then maybe you take a run at getting onto the girl teams. And obviously, like there are fraught questions about athletic advantage, but like that's also just not true with respect to every sport. Like there are different rules with respect to the sports. Like there's not, you know, a team for girls and boys in every sport. It was just like the predicate was also just wildly off and pretty offensive. But obviously, when does that stop them. Okay, but let's cut to the chase. In terms of the award, I think, as I said at the outset, it has to go to Mupin, who argued on behalf of the federal government.

47:35I lost track of how many times he used the phrase biological males. It felt like he was kind of dripping with contempt at a number of moments during the argument. Maybe the kind of real low light was his reference to gender affirming care as, quote, performance-altering drugs, as in this clip. And yes, we don't think a man taking performance-altering drugs is similarly situated to a woman. That's the whole counterfeiting thing. Yeah. No, the fraud point and connecting to all these other fraud narratives I think is really profound. Also, who the fuck takes estrogen as a performance-enhancing drug to play better tennis?

48:12Literally, as Melody said in a text team, we were all, she was like, estrogen famously performance-enhancing. These are people who are literally blocking testosterone and sometimes taking estrogen. That's the performance enhancer. The logic of these guys, if testosterone is the thing that gives you this enormous advantage, like, how does this even cohere in their own minds? I could not tell you. Maha. Make America happy again. Exactly. Exactly. Another moment that triggered my gag reflex was when Mupin decided to debate whether girls do develop faster than boys, as you can hear in these clips.

48:48What about the hypothetical I posed earlier that when it comes to high school performance, girls are sure a lot better than boys. And so we're only going to have remedial classes for boys and girls aren't free to attend. So I don't think those differences are based on inherent biological differences. I don't think the sort of pseudoscience you're suggesting has been baked. Well, it's not pseudo. It's good science. That's pseudoscience to say boys' brain development happens at a different stage than girls' does. Well, with all respect, I don't think there's any science anywhere that has suggested that these sort of intellectual differences are traceable to biological differences.

49:29I'm going to call someone out for the Herculean efforts that he made during this oral argument to not be in the pool of those considered the most transphobic person in the room. And that is our boy, Coach Kavanaugh, a father of daughters. Not surprisingly, he did not want to be the most transphobic person in the room. And he did his part here to stay off that list by reminding us of his ardent love for sports and by making sure we knew that although he's very definitely going to vote against trans athletes, he's very, very torn up about it. Let's roll the tape. Can I ask a question on the law on Title IX?

50:13I mean, I hate that a kid who wants to play sports might not be able to play sports. I hate that.

50:23But it's kind of a zero-sum game for a lot of teams.

50:30And someone who tries out and makes it, who is a transgender girl, will bump from the starting lineup, from playing time, from the team, from the all-league, and those things matter to people big time. We'll bump someone else. There's so much more along these lines. Like, this is really tough for me, guys. He hates it. It kills him. If it's so tough, quit, right? Like, come on. Stop whining. You're making me do this. Oh, anyway, Josh Block had some great responses to this. So we're going to play two of them here. I completely understand that many parts of sports are zero sum, but this law isn't limited to zero sum opportunities.

51:19So BPJ played on the cross country team where there were no cuts. She came in near the back. I just want to say that there still are some areas where there are win win solutions. I think even being able to be on practices with a team consistent with your gender identity instead of your sex assigned at birth can be enormously important. So I think some scenarios are zero sum, but not everything having to do with sports is. And I do think that one of the vices of this law is that it sweeps so broadly that even win-win solutions are taken off the table. One other thing to flag in all of this is what did we make of Justice Gorsuch surfacing the argument that transgender individuals constitute a discreet and insular minority.

52:04So some sort of heightened scrutiny is appropriate here. Because obviously, we didn't have visual of the courtroom. We only heard audio. But don't you think that Sam Alito and Amy Coney Barrett were like, excuse me, we've already decided this. Like we did this in Scirmedi. Like where were you? Silent again? The sea witch had his tongue, as you are wont to say. So here's one theory, which is in the preceding clips with Mupon debating whether girls do develop faster, that caused Neil Gorsuch to interject, that's not pseudoscience. And a part of me wondered if Mupon was so offensive, he was potentially like turning Neil Gorsuch, our literal stop clock, into like transitory moments of sanity.

52:54Well, let's play a clip. No, but he was saying in the opening with the Idaho lawyer, which was before Mupin's argument. So I'm sorry. I know. I don't think that's – Can I play the clip? Seriously, I have genuinely been noodling on this because I thought the conservative block was all sewn up on this question. So here's Justice Gorsuch. There's another way to think about the case your friends on the other side posit, and that is that transgender status should be conceived of as a discreet and insular class subject to scrutiny, heightened scrutiny in and of itself, given the history of de jure discrimination against transgender individuals in this country over history in immigration and family law, cross-dressing statutes.

53:40they give a long laundry list and I'd like you to respond to that. Did you hear that? I mean, it almost feels like he's like, let's rethink this whole suspect class thing. Or it's a just tell me what to say, right? Like I'm teeing you up a softball and you just tell me why, you know, this won't matter. I don't know. That's kind of how I honestly read it or heard it. And we don't have this, we're not going to play this clip, but you know, there was a concession. The idle lawyer, like, again, like these are tiny little, I suppose, slivers of sanity, but did concede that there is a history of discrimination against transgender people.

54:17So I guess. And Amy Coney Barrett was like, was it by law? Was it by law? And Hartner was, you know, didn't address her directly on this, but definitely was like came in with receipts. De jure or de facto? About actual immigration exclusions. Yes. State and local laws criminalizing cross-dressing. I mean, she had the actual laws ready to cite to them. Closing thoughts. So it seems like at a minimum, they're going to say Title IX doesn't prohibit state laws that ban trans women and trans girls from sports because sports, you know, that will be their reasoning that Title IX allows sex differentiation in sports and restrooms under more lenient standards than elsewhere.

54:56I think there's a small, like maybe outside chance that the excellent lawyering and advocacy by Josh Bloch and Kathleen Hartnett and the really strategic, in my view, interventions by the Democratic appointees might, and again, might be wish casting here, might lead the court to say we're not going to address the equal protection clause issue now and instead send it back down for more fact finding, which is what the Fourth Circuit did in the non-moot case, West Virginia versus BPJ. And so there's unfortunately another Kavanaugh moment I wanted to flag. It's okay, Leah. This is your podcast. You can do that.

55:32One last clip. And I think one of the themes of your argument has been the more people learn, the more they'll agree with you. At least I've detected that theme in your argument. So why would we get involved at this point and constitutionalize? He is basically saying to the plaintiffs, So it sounds like you think you're right. Why isn't that a reason you lose since people will be persuaded except us? I honestly, I'm listening to this argument and he's like, I didn't get a chance to dissent in Obergefell. And so this is my chance to really do it. Exactly. Let's not give the rights because maybe at some point states might decide to do it.

56:10Sort of a TLDR. Can I offer a hot take? Yes. I think this might actually be even bigger. I think they may go bigger with this case. I do. Part of it is like sort of the way what he said and how he said it. But also, I think you can't understand this case without also thinking about what is happening in tandem with the executive orders, like protecting and defending women and girls, the stuff about gender affirming care. It just seems like the road is wide open and they are not going to be constrained by public opinion, whether it's with what the executive branch is doing or what might come out of the courts.

56:47And so they could genuinely go big here. All of those executive orders that have been issued, they've been challenged, but mostly on procedural grounds, not on the substance. A lot of EPA challenges, yeah. Right. Not on the substance, like the sex equality questions. Like, they're all inconsistent with what has been extant sex equality jurisprudence. And so I just think there is a wide open lane for them to really begin the project of dismantling sex equality. And this is a very good vehicle for doing that. And they think that sports is safer than other domains. Yeah, I think that there's. That could be.

57:27So I just wanted to touch on a piece of news that underscores the anti-trans fervor we are living through, which is right-wingers seem to have preemptively ousted the recently announced dean-designate of the University of Arkansas Law School. So after announcing Professor Emily Susky as the next dean, the school announced that after receiving feedback from key external stakeholders, the university decided to go in a different direction. While the Arkansas Times reports that the disagreement arose from right-wingers opposition to Suski signing amicus briefs in support of trans athletes' sex discrimination claims.

57:59And an adjunct at the university said conservative elected officials had threatened to withhold funding if Suski became dean. Academic freedom. But those poor men, am I right? Freedom. F-R-E-E-D-U-M-D.

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1:00:55Okay, let's briefly mention the other two cases that the court heard from last week. They heard oral arguments in what was a pretty interesting interstate sovereign immunity case, Galette v. New Jersey. This involved whether the New Jersey Transit is an arm of the state of New Jersey, in which case it would be immune from suits in other states, or whether it is a corporation separate from the state and thus can be sued in other states' courts. This is actually two consolidated cases, both brought by individuals who were struck by New Jersey transit buses, one in Manhattan and another in Philadelphia.

1:01:29The New York Court of Appeals, which is the court of last resort in New York State, despite its name, it's not an intermediate court, it's actually New York's version of the high court. And it allowed the case to go forward in New York on the grounds that New Jersey Transit is not an arm of the state. The Pennsylvania Supreme Court, by contrast, went the other way and said it was an arm of the state. So it's a sort of a split between these two different state high courts. And the argument was quite interesting. The truth is there are a lot of threads supportive of each side in the court's cases.

1:02:02And it's like a pretty complex, like factor-heavy test that the earlier cases have announced. So I honestly don't know which way this case will come out. But I did want to play one short clip from Justice Kagan. So there was some debate about the relevance of a case that we have talked about a lot on this show, Biden v. Nebraska, in which the Supreme Court struck down the Biden administration's student loan forgiveness plan, but only after finding that a group of red states had standing to challenge that plan. And the way they did that was by concluding that a Missouri loan processing agency called Moheela had standing.

1:02:33Anyway, Kagan wrote one of her fiercest dissents ever in that case. She accused the majority of violating the Constitution and then the chief justice basically accused her of bringing the court into public disrepute. And anyway, I thought all of that really was like important backstory for understanding this like little aside in an exchange about Biden versus Nebraska. So let's play it. I've been a bit surprised you haven't mentioned Biden v. Nebraska. Do you not think it helps you? The key question in the part, of course, of Biden v. Nebraska that had to deal with standing, the key question was whether Mahela was a part of Missouri.

1:03:10And I would think it's pretty clearly on point there, right? It's a soon-be-sued agency which had exactly the same kind of insulation from liability as this does. And what the court looked to was intangible aspects of control and directive, you know, who appointed the board of directors, what kinds of functions were they serving, all the kinds of things that you want us to look at was what the court said. There was, of course, a dissent, but what the court said was critical in understanding Mahela as a part of the state. So I just thought there was, of course, a dissent. Might need to be on T-shirts slash like might be, I don't know, an epigraph for this era.

1:04:01I hear what you are signaling, Kate. She's picking up what you're putting down. Yeah. So finally, the court heard Chevron versus Plaquemines Parish. Plaquemines. Plaquemines. So we received feedback, and I am just reading an Instagram message. Fuck your feedback. I literally asked someone from Louisiana. Well, I'm just reporting there seems to be some differences of opinion. I love that they didn't send it to me because I was like, bitches, I asked. You said I don't want the feedback. Or it was the show account, which Leah's the only one who checks it. Yeah, I can't remember which one it was. I literally asked like three people from Louisiana how to say those words.

1:04:45Well, anyways, this, however you pronounce it, is a case brought by some Louisiana parishes against oil and gas companies they say damaged the Louisiana coast many, many years ago during the production of crude oil during World War II. The argument is they didn't get proper permits, violated the terms, and they engaged in other legal violations, and the parishes want the companies on the hook to clean up the coast. Chevron, who is the petitioner here, wants the case to be heard in federal court, and it's arguing that it gets to be in federal court because its predecessor was a federal contractor.

1:05:16The federal government agrees that the case should be in federal court. Louisiana, which is usually aligned with the federal government these days, however, is here on the other side of the case because sometimes federalism is still a thing. Yeah, this was sort of a theme of the week. West Virginia, Louisiana, Idaho, sometimes breaking with the federal government. Anyway, there's some interesting debate in the case about different provisions of the federal officer removal statute, a few other federal laws. There are like waiver and forfeiture questions. And there were some sort of interesting state dynamics regarding the division of authority between the parishes who initiated this litigation and then the state who was actually before the court arguing.

1:05:53And they were kind of like co-counsel below. Anyway, I do think Paul Clement for Chevron is likely to get a win here, but we'll keep our eyes peeled for the decision in that case. Okay, so let's now turn to opinions. We got three pretty unanimous opinions from the court. So even though, as we have mentioned, they bucked the tradition of starting the kind of opinion season with a unanimous opinion of some sort, they did get there with these three. So the first was Barrett v. United States. It's a mostly unanimous opinion by Justice Jackson siding with a criminal defendant who had been convicted and sentenced under two separate provisions.

1:06:32One is 924C1A. Little I, which criminalizes using, carrying, or possessing a firearm in connection with a crime of violence or drug trafficking crime. And the second, 924J, contains different penalties if the violation of subsection C causes death. And the court agreed with the defendant that someone who commits a single act that violates both the provisions may be convicted only under one, not both. The bottom line conclusion was unanimous. a short final portion of the opinion discussing legislative history, the horror, was joined only by Justices Sotomayor and Kagan and the chief, and Justice Gorsuch concurred in part to highlight some ambiguity or tension between the court's cases and the double jeopardy clause, things the court might end up having to address down the road.

1:07:16The second decision in which we got an opinion was Case v. Montana. At issue here is what standard applies to police officers when they make a decision to enter a home because they think someone inside is in need of emergency assistance. Though you would not know this from the things that ICE is doing in Minneapolis right now, as a general matter, the Fourth Amendment prevents officers from entering homes without warrants. And generally to get a warrant, you must convince a judge that there is probable cause to believe that someone has committed a crime and that evidence of that crime will be found in the home.

1:07:51But there are, of course, exceptions to the warrant requirement. Among other things, the court has allowed warrantless entries of homes when officers have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury and is inside the house. So the question in this case is, in order to enter a home without a warrant to provide emergency aid, what showing do the officers have to make? At issue here was an entry into a home of an individual who was threatening suicide and who was known to police as someone who had a history of mental health issues and had threatened suicide before.

1:08:24So under those circumstances, the court concluded the officers had an objectively reasonable basis for believing that the occupant of the house was in serious danger. And that's really all the law requires. The opinion by Justice Kagan was unanimous. Justice Sotomayor wrote a separate and I thought really thoughtful concurrence highlighting just how frequent police killings that involve suspects in some kind of mental health crisis are and also to highlight considerations that law enforcement should bear in mind when they are assessing whether there is, in fact, an objectively reasonable basis to believe that a person experiencing a mental health crisis needs law enforcement to render emergency assistance.

1:08:55They might not always. And the third opinion we got was in Bost v. Illinois State Board of Elections. This is a case primarily about standing. It has a potential for having significant consequences for the conduct of elections. The question at issue is whether candidates for office, so here a member of Congress and two presidential electors, have standing to challenge a state law governing mail-in ballots. So these candidates claim that Illinois law, which like many other states, allow the counting of mail-in ballots so long as they are postmarked by Election Day, violates federal law. But they can only make that argument if they have standing to do so.

1:09:29That is, they have to show they are injured by this requirement. And the court here, in a 7-2 opinion authored by Chief Justice Roberts, concludes that they do have standing. This law authorizing the counting of ballots, postmarked by Election Day, injures them.

1:09:46We should also note that as we've discussed in prior episodes, this court is also, I think, doing a reassessment, a renegotiation of the entire rules around standing. So we can include this decision in that broader oeuvre, if you will. I will just note that the Chief Justice essentially reduced the entire standing analysis to what some might call a throwaway line in a 1983 Law Review article written by Justice Scalia in the Suffolk University Law Review. Essentially, the Chief Justice quoted this line from the Scalia article. A plaintiff asserting an injury must, quote, in other words, be able to answer a basic question.

1:10:26What's it to you? And Chief Justice Roberts determined that what's it to the Illinois congressman who brought this suit? Well, quote, he has an obvious answer. He is a candidate for office and a candidate has a personal stake in the rules that govern the counting of votes in his election, end quote. Just going to say it's a pretty broad statement of how you get to standing. What's it to you is what you 1Ls. Just write that down. Write that down. That's how he goes. Rule now. Yeah. What's it to you? Uh-huh. The great man said it, so that's law. Yeah, it has to be right. Just going to note, this is not something the court has really said before.

1:11:05Lujan had nothing to say about what's it to you. And it effectively opens up the possibility of candidates for office being able to challenge just about every aspect of election law going forward, because what's it to you? I have a stake in this election. I'm a candidate. So in addition to just being this like throwaway line, not law, just so, I don't know, cavalier, it was also just offensive to me to frame this as a standard for standing when the court has rejected standing for the parents of black children who challenged the IRS's support for segregated schools, a black man who had been placed in a chokehold by the LAPD, who sought to block the LAPD's reckless chokehold policy.

1:11:47Like, what's it to you? And I guess the court thinks the answer was nothing. Well, not everyone on the court. So you know who else found all of this offensive, Leah? You weren't alone. Justice Jackson. So she spent a considerable amount of time on the facts of Lyons versus - Nothing but respect for my chief justice. Anyway, sorry, continue. In your heart. Lyons is the case that Leah was just alluding to, Lyons versus the LAPD. In that case, the court said that the plaintiff didn't have standing because there wasn't a sufficiently real and immediate threat of future harm. As Jackson explains, quote, it did not matter, for instance, that Lyons had almost died from an illegal chokehold only five months prior to his filing his complaint.

1:12:31Nor did it matter that no less than 16 persons had died following the use of a chokehold by an LAPD police officer in the preceding decade. End quote. All facts didn't matter at all. But back to the majority, in rhetoric that is, I guess, a little hard to square with the court's general disdain for, I don't know, democracy, but is also equally hard to square with its reluctance to recognize other injuries it deems speculative in cases like Clapper, the court had this to say, quote, An unlawful election rule can injure a candidate in several ways. It might cause him to lose the election. It might require him to expend additional resources.

1:13:10Or it might decrease his vote share and damage his reputation. Candidates also have an interest in fair process. Candidates are not common competitors in the economic marketplace. They seek to represent the people. And their interest in that prize cannot be severed from their interest in the electoral process, a process of the most fundamental significance under our constitutional structure. All of this, according to the chief, is more than enough to satisfy the requirements of Article 3. Justice Barrett concurred only in the judgment joined by Justice Kagan. That means they agree with the conclusion, but not the reasoning.

1:13:46So they agree that the congressman has standing, but say the standing is grounded in a traditional pocketbook injury. That is, the specific law being challenged imposes concrete costs. Here, you know, the congressman says the state's allowance for late arriving ballots means his campaign has to spend time and resources after the election monitoring the arrival of ballots, having poll watchers present for counting. And she accuses the majority rule of being unmoored from precedent as well as unnecessary. OK, so but let's get to the most important writing in this case, which Melissa already alluded to in her discussion of Lyons, the dissent by Justice Jackson joined by Justice Sotomayor.

1:14:20So she accuses the majority of crafting this bespoke standing rule for candidates for office alone among the population, parents of children excluded from genuinely integrated public education, individuals being wiretapped by the federal authorities, individuals previously actually placed in chokeholds and almost killed by the police department. No, those people don't get special rules. But you know who does? Candidates for office. And so she writes, quote, the court subtly shifts from our longstanding actual injury rule to a presumption that certain kinds of plaintiffs are sufficiently aggrieved to satisfy Article 3 standing, regardless of whether they will experience any particularized harm.

1:14:59In my view, this dubious departure from settled law disregards both the equal treatment of litigants and judicial restraint. She also accuses the court in pretty sharp terms of inverting basic principles of democracy and representation. So I know this is kind of long, but I do want to read it. I'm pretty obsessed with this dissent, actually. So she says, quote, the court insists that a candidate's interest is undeniably different from that of a voter's because it is the candidate and not the voter who competes in an election. That assessment gets the significance of the relative interests exactly backward.

1:15:30A public office is a public trust, and an election for that office is the ultimate expression of the will of the people, not a mere competition to be won or lost. In the court's telling, elections are a glorified national pastime. The competitor's success is the main objective. Voters are mere bystanders who simply lend their support. This depiction drastically devalues the role elections play in democratic society. Wow. Can I just say, this is one way you might understand this is just sort of the difference in the way prosecutors and defenders often talk about their jobs. Not all prosecutors.

1:16:05I don't want to paint with a broad brush here. But I remember once when I was at Berkeley, we had a local prosecutor come in and talk, and he talked about winning. And then he was debated by a public defender who was like, you know, I never think about my job as winning or losing. I'm here to ensure that justice prevails. Like, that's not my job. My job is to make sure that justice is done. And I think when she made this point about the elections. It's like, this isn't just an ordinary competition. It's like, you're trying to gain a position where you're working on behalf of the public. And that's the point.

1:16:42It's not just about winning or losing like in sports. It's not a gladiator thing where it's like, are you not entertained? Right. It's not a gladiator thing, but also like back to Melissa's point about their disdain for democracy elsewhere. It's just like, you're totally wrong actually about who the real actor party and interest is here. It's the voter. And like all you have done is completely denigrate the role of the voter in like meaningful access to participation and representation. And yet you pretend to glorify these representatives who actually just are vessels, not the actual sovereign actors.

1:17:13It was just a very profound meditation, I thought. And the other thing that I think is interesting is that if you pair this with her writing in Snyder, I think she's also shading her colleagues. Like, a public office is a public trust. She still hasn't forgotten about the emotional support billionaires. Same girl. Me neither. Yeah, neither should we. And, like, I have to say the passage, you know, you read that long excerpt. So I gave the kind of underlying facts in this case to my Fed court students. And, like, she really put her finger on, like, what I suggested was the kind of key countervailing principle.

1:17:48Because I think Justices Barrett and Kagan are right in the sense that these particular rules do generate expenses, right, because they potentially prolong the period in which campaigns might be active. But then there's still this question of, is the plaintiff's injury legally cognizable? Like, is this something the law recognizes as an injury to this person or entity? And the idea that a candidate or elector is injured by rules that allow more people to vote and more votes to be counted is antithetical to democracy. It's just anti-democratic. And it's like when we preview the case, I think I said, like, could Donald Trump argue that the due process clause injures him because it would be cheaper and faster for him just to summarily execute people he doesn't like?

1:18:23No. And I think we said not to give them any ideas when you said that last time, and I say it again today. Back to Jackson. As we mentioned, she invokes Lyons and says, quote, if only the Lyons court had seen fit to create the sort of harm-free status-based standing rule that the majority adopts today, end quote, which is kind of a banger, like F you guys. She ends by saying she's all for simplifying standing doctrine, but not this way, not by fashioning these quote-unquote status-based rules. And it seems clear that she means to include not only candidates for office, but the kind of corporate actors she referenced in her dissent in Diamond Alternative Energy last year.

1:19:03Also obsessed with that one. She's making the point, this court is kind of in the bag for certain kinds of plaintiffs. I thought it was really interesting the way the Chief Justice framed the Illinois Congressman, the injury to his dignity, to his reputation. Seriously, who gives a fuck? He decided to run for office. Like, let the votes be counted. Like, who cares if, like, it's, you know, your feelings are hurt because someone might think you lost because there were mail-in ballots. Like, who cares? But this is a court that really cares about corporations and people's fee-fee's. Not all people, just amends.

1:19:37Not all people, yeah. Yeah. Going a bit more on the Justice Jackson dissent, she had another terrific footnote in this opinion in which she cites Brett Kavanaugh's opinion justifying Kavanaugh stops. I can do footnotes too, bitch. Right. Right, like, as evidence that the law of standing seems to favor some plaintiffs, but not others. The end of the footnote was, quote, Noam versus Vasquez Perdomo, Kavanaugh J. concurring, concluding that under Lyons, Latino plaintiffs who were, quote, stopped for immigration questioning allegedly without reasonable suspicion of unlawful presence and, quote, lacked standing to seek an injunction.

1:20:11Don't let him off the hook for those Kavanaugh stops, girl. I love it. I love the energy. She's like, you can write all the footnotes in the world. I just won't read them and I won't forget them. Right. Where I will just footnote back and remind everyone. A footnote to a footnote. Exactly. OK, so let's just briefly take through some assorted legal news before we go. I wanted to mention quickly that the court granted, vacated and remanded, GVR'd, in a case called Zelinsky v. United States involving the International Parental Kidnapping Act. So the rare piece of good news from the Supreme Court.

1:20:45So this case involved a woman who fled with her son to Mexico on her account because she believed her four-year-old son was being abused by her ex-husband. They returned to the U.S. She was charged with international parental kidnapping in violation of a federal statute. The statute provides an affirmative defense if the defendant is fleeing domestic violence. But the lower courts concluded that this only applies if the parent is personally the victim of the domestic violence. She was convicted and sentenced to three years in prison. She then filed a cert petition arguing that this was an error.

1:21:16And the federal government actually agreed that the lower courts were wrong to read the statute as only allowing this affirmative defense if you're the personal victim of the domestic violence. Anyway, maybe in light of that concession, the court did grant and vacated remand. So she gets another shot below. It's like an incredibly tragic case. And I'm happy that she has another chance to prevail. Yeah. I wanted to quickly note that Democracy Forward won and got a favorable decision in their case on behalf of the American Academy of Pediatrics, which was challenging the Department of Health and Human Services, rescission of their federal funds, largely in retaliation for the American Academy of Pediatrics, questioning and criticizing HHS's pro-death, anti-children policies.

1:21:57So I wanted to note that decision since it was ongoing when I talked about it with Skye Perryman. Okay, we should also note that we got a decision in that California redistricting case. This is the challenge to Proposition 50. This was California's response to Texas's effort to engage in mid-cycle redistricting. In this case, which was heard before a three-judge panel of the Central District of California, we got a two-to-one decision. The Trump nominee who was on the panel was in dissent. The author of the opinion, Judge Josephine Staton, wrote as follows, Quote, the evidence presented reflects that Proposition 50 was exactly what it was billed as, a political gerrymander designed to flip five Republican-held seats to the Democrats.

1:22:40Judge Lee, who is of the Ninth Circuit, dissented in this case. But just to make it very clear, the California GOP and the Trump administration will likely make another last-ditch effort to get the Supreme Court to help them out on this particular case. So I think we ought to stay tuned to see what happens and whether or not this will be appealed. And just on the Judge Lee dissent wanted to acknowledge a New York Times study on the breakdown in votes among Trump appointees versus other judges. You know, they found, looking at Trump's appeals court judges, that they had voted for the administration in, you know, more than 100 cases and against them in less than 15, you know, basically voting for the administration in more than 90 percent of cases.

1:23:23And that that skew was significantly, you know, more skewed and disparate, you know, than the breakdown among judges appointed by Republican presidents or Democratic presidents. Okay, we also got a Third Circuit ruling in the case of Qamud Khalil, the Columbia graduate student who was arrested and detained for months because of his advocacy for Palestinian rights. The opinion did not address the First Amendment argument, but ruled that the district court below lacked jurisdiction in the case. Khalil is represented by the ACLU, which has said that it has yet to decide on next steps, but those next steps may include seeking en banc review.

1:24:00And while that consideration is ongoing, he does remain free and with his family. And finally, as we sat down to record, the Times reported another slew of just odious Trump pardons. I haven't had a chance to really dig into them. I don't know if you guys have. But like – I just saw the double fraud. I mean it's not crazy to think you can fraud again if you got pardoned for convicted for frauding the first time. And that is what one of the recipients of the pardons seems to have done. There was also a pardon for someone whose daughter gave millions to a Trump-backed super PAC, a former governor of Puerto Rico, a former FBI agent who pleaded guilty to political corruption.

1:24:41Seems like a great list. Congrats to all.

1:24:48And let's end with things that we read and enjoyed in the last week. I've just got a couple. One, I'm sure you guys both saw, and I hope that our listeners saw, and if not, please, please read this ASAP. Laura Jadid had a piece in Slate that was titled, You've Heard About Who ICE is Recruiting. The Truth is Far Worse. I am the proof. And I don't really want any spoilers. The headline does capture the tale that she unfolds, but it is incredibly well done and stunning and terrifying. Yeah. So I just read – I didn't read it a few years ago when a lot of people did, but Remarkably Bright Creatures, which is a very delightful quick read.

1:25:30Oh, Shelby Pelt. Yeah. Did you read it? No, I want to. Will I love it? I think you'll love it. I read it like so fast and it was just like – I like that. Yeah, it was really delightful. Okay. So recommend that. And I'm reading now God of the Woods, which I am enjoying. I love – It's stressful. I love it. Anyway. So yeah. And last night I saw at the public theater Ulysses a staging of the James Joyce novel that I cannot recommend highly enough. It was completely deranged and like ecstatic. And one of these theatrical experiences where you were like kind of vibrating the entire time. It was that insane and incredible.

1:26:11And I'm not even like a huge fan of that book. You were vibrating the whole time. I was. I love Portrait of the Artist as a young man. I confess I actually have never finished Ulysses. Although this made me want to give it another shot. but I truly loved it. It's running for maybe February, through sometime in March, not a hugely long run, but there are some tickets left for some of the later shows. So highly, highly encourage people to check it out. I would plus one Laura Jadid's piece in Slate. You have to read it. You know, in a different register, Shlom Auslander had a piece in the New York Times.

1:26:42They were ordinary Germans. We are ordinary Americans. It just very powerfully, you know, conveys the extent to which, like, people engaged in atrocities. still carried on normal-ish aspects of their lives and the ease with which they slipped into the Nazi regime. As we noted up top, our friend Professor Steve Vladek has a few interviews about the Insurrection Act. If you're looking to learn more about that now, would recommend his conversation with Alison Gill, which we mentioned up top. He also did a conversation at the Contrarian. So again, if you're looking to learn more, definitely check those out.

1:27:18finally whole other register the alienation don't this is mine this is mine I put it in the dirt first this is family law this is your domain Melissa this is my domain this is my super role but it involved a Taylor Swift concert okay so I've actually been waiting to talk with you about this I held my fire I did not text you about this so here are my favorite things for the week I didn't read anything this week in part because I was reviewing copy edits of a project that I will be willing to discuss with our listeners maybe in the next episode. So stay tuned. But my favorite things of the week were, one, running into John Slattery, a.k.a.

1:27:59Roger Sterling of Mad Men, in the green room at MS Now. And I literally have seen almost everybody at MS Now at some point. I saw Hillary Clinton. I saw Zoran Mandani. I've never been tongue-tied. But I literally walked out of makeup and ran into John Slattery. and was like, I think I said something like, I'm from Florida or something like insane. And he was like, it's great to meet you. And then I had to sit with him in the green room for 30 minutes. And he was so nice. He was there to promote his movie Nuremberg, which is out. And I actually have wanted to see Nuremberg. It's based on a book about the psychiatrist who interviewed all of the Nuremberg people to sort of figure out like, you know, how do people become genuinely evil?

1:28:46like this. And Russell Crowe plays one of the Germans. I think he plays Goering. It's supposed to be fantastic. John Slattery plays a commandant in the prison that is holding the Germans who are being tried at Nuremberg. And Rami Malik is in it. It's supposed to be fantastic. And it is now streaming on pay-per-view so you can see it at home. I think it had a very limited release in theaters, but I think it's now going for all kinds of awards consideration. It's supposed to be fantastic. So I actually have it teed up to watch. I was absolutely gobsmacked, not because I saw this person, but because I read about Kristen Sinema's alienation of affections lawsuit.

1:29:26Not the one she filed, but the one that was filed against her. And this is my Super Bowl. So many of you don't know about this, but there used to be a time when you literally could sue someone for being a thirst trap for your spouse. Like just even enticing them. It's called alienation of affections or a bunch of these kind of heart bomb torts. They've mostly receded. I think they're still in roughly five jurisdictions in the United States. North Carolina is one of them. They're mostly in a state of desuetude, but occasionally a very aggrieved spouse will sue another spouse's paramour for enticing their former partner.

1:30:05And that is what has happened with Kristen Sinema. She apparently got friendly with another lady's husband. And I have to say, the things, her wiles are, her techniques are truly interesting. How she does the entrapment. Yeah, yeah, yeah. I mean, so she wooed this man with Taylor Swift tickets. Suggesting he bring MDMA to work? Yes. She wanted him to have a psychedelic experience. She bought him some clothes. I mean, like basically, Leah, she's a third of the way to seducing you. No. Strong. Strong. Taylor Swift tickets. Strong disagree. One of three. One of three. Strong disagree. You wouldn't fall for it?

1:30:52That game won't play. You need more? Okay. But I just, I love that this came out. Literally. And then people were just like, another thing I have to hate Kristen Sinema for. And like specific things that are like in the complaint are just incredible. Like it includes a detail like her former security chief quit and on the way out said she's sleeping with a bunch of the security team. Right. Like, OK, why is that in the complaint? I don't know, but I was glad it was just so many things like that. I'm actually just here for the family law. I'm so going to use this in my family law class next year.

1:31:27Like I have I have the complaint. Get ready. It's going to be amazing. Finally, my last favorite thing of the week is something that I saw on social media in response to what is happening in Minnesota. And I know everyone is talking about Minnesota nice. My man in this video was not Minnesota nice, but he was nicely dressed. A gentleman, he is a Vietnam veteran, decided to tell ICE what he thought of what they were doing. And he came dressed for the revolution. He is wearing a half length fur, a hat that denominates him as a Vietnam veteran, and my favorite, a pair of lemon pepper stepper gaiters.

1:32:10If you don't know what I'm talking about, look them up. And he basically tells ICE where they can go. So roll that tape. You're here to terrorize this city. A bunch of bitches if I've ever seen a bunch. And I'm telling you to your face. And if you don't like it, fuck you. Couldn't have said it better myself. Sounds great. All right. So some housekeeping before we go, starting with Runaway Country this week. So since an ICE agent shot and killed Renee Good in Minneapolis, President Trump and MAGA have labeled her a domestic terrorist. They have come up with one reason after another to justify her death.

1:32:47And on the latest episode of Runaway Country, Alex Wagner takes a look into how law enforcement is interpreting the event by interviewing Michael Moore, the former chief of police for the Los Angeles Police Department. Then Tim Miller joins to question the parallel realities Americans seem to be living in, despite ample video footage and even in cases of life and death. Tune into Runaway Country wherever you get your podcasts or watch on YouTube. And guess what, folks? We're running away across the country because we're headed to the West Coast, where we are going to be seeing all of our favorite West Coast stricties in beautiful Los Angeles on March 7th at the Palace Theater.

1:33:20You can join us as we dissect the opinions and analyze the cases that have the potential to reshape our daily lives. We also are making a stop in San Francisco. We will be joined there by California Attorney General Rob Bonta. The San Francisco show is sold out, but you can still grab your tickets to the LA show before they're gone. You can get them at crooked.com forward slash events. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, Melissa Murray, and me, Kate Shaw. Our senior producer and editor is Melody Rowell. Michael Goldsmith is our producer.

1:33:55Jordan Thomas is our intern. Music by Eddie Cooper. Production support from Katie Long and Adrian Hill. Matt DeGroat is our head of production. Thanks to our video team, Ben Hethcote and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app and on YouTube at Strict Scrutiny Podcast so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

1:34:28Quick question. Are you politically engaged and spiritually exhausted? If you said yes to both, welcome home. I'm Erin Ryan. And I'm Alyssa Mastromonaco. And we're the hosts of Hysteria, the podcast for women who care about democracy, culture, and not losing their minds in the process. We break down the news, call out the nonsense, and spotlight the women actually fighting back on Capitol Hill, in classrooms, and everywhere the stakes are high. It's sharp, honest analysis featuring women's voices with humor and zero handholding. Listen to Hysteria wherever you get your podcasts and watch full episodes on YouTube.