Will the Voting Rights Act Survive SCOTUS?

26:21So Sam, we know that your time is limited, we'll let you go. But thank you so much for joining us to talk this through. Thank you.

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29:34That was super helpful. We wanted to spend some additional time on a few themes we saw emerge during the argument. Theme one. What's the significance of the court's 2023 decision in Allen v. Milligan, a virtually identical case? Or we could also call this theme, why is stare decisis for suckers? So as a reminder, listeners, two years ago, in a case just like this one, the court affirmed a lower court's finding that an Alabama map violated Section 2 of the Voting Rights Act when Alabama created one rather than two majority-minority districts. Again, districts where Black voters would have more political opportunities.

30:14Sounds so familiar what you're describing. I know. It's so weird. Anyway, before finding the map invalid, the court did allow Alabama to use the illegal map in a congressional cycle where that might have had something to do with the Republicans gaining control of the House, but just one congressional cycle, just the tip, as it were. I know they did that on the shadow docket, the just the tip docket. They sure did. That's that's when we should have known just the tip. Anyway, in any event, when the court finally resolved the case on its merits docket, it applied the Jingles test and affirmed the lower court's determination that the map was unlawful.

30:57It also stated pretty unequivocally that in order to establish a Section 2 violation, you had to show effects, not intent, which is something we've been talking about. The court then confirmed that Section 2 applies to redistricting challenges and that it is not unconstitutional. So effects, not intent. Section 2 applies to redistricting. Section 2 is not unconstitutional. It would seem that But Allen v. Milligan kind of ticked a lot of boxes that have been raised in Louisiana v. Milligan? Don't know her. Don't know her. I mean, you know, before we get there, because the way this is supposed to work is that in our legal system, we typically reason from precedent.

31:42So the precedent that's most on point here, very recent, Allen v. Milligan, the case that Melissa was just talking about, is where Janae Nelson started her argument. Allen v. Milligan was decided 28 months ago on all fours with this case, and in a normal system of precedent, Allen would control this case full stop. And yet, here is Chief Justice Roberts, noted institutionalist. Say it the right way. Institutionalist. Institutionalist. You got it. Okay. Distancing himself from Milligan, which, to be clear, he wrote right off the bat. Counsel, you began with Allen against Milligan. That case, of course, took the existing precedent as a given and considered Alabama's application of its approach to the evidence and all that under that precedent.

32:34Yeah. And as Janae responded kind of incredulously, yes, it did take precedent as given because that's typically what we do. No, that's actually literally how precedent and stare decisis work. You take the precedent as a given. And of course, the Democratic appointees on the court were keen on this. So Justice Sotomayor asked Janae what I took to be kind of a mocking question along the lines of, well, assuming that Milligan and all of our cases and precedents support you, the others are now saying we should still declare this law unconstitutional. Want to address that? And then here is Justice Kagan in the seriatim portion of the questioning, just dog walking the Louisiana Solicitor General on this point.

33:14General, a couple of years ago when we decided Milligan, the party there, the state there, made several arguments that we specifically rejected. And in the answers that you just gave to me, it seems to me that you've repeated each and every one of those arguments that we rejected. So I'll just run through a few of them. What they said was that the 15th Amendment permits Congress to legislate against only purposeful discrimination by the states. We rejected that. We said, no, Section 2, which is an effects-based test of vote dilution, is permitted under the 15th Amendment. There, in Milligan, the state said that the 15th Amendment doesn't authorize race-based redistricting as a remedy for vote dilution Section 2 violations.

34:09We said no, that wasn't correct either.

34:15There was another related theme that surfaced at this argument. And it's one that's, I think, often in play at the court, certainly in recent years. And that theme is the desire to magically rethink the past, even when we have actual record evidence of what the actual past was. So here, the Louisiana SG and the Republican appointees really insisted that Milligan was an entirely different challenge. It was not on all fours with this particular case, and therefore it could easily be distinguished from this challenge and therefore was not a binding precedent. All to say actual magical thinking, like Joan Didion a year fucking magical thinking this through.

35:03And the fact that they do this makes it so much easier to understand why they are so utterly inconsistent and itinerant about this history and tradition method. It's like they don't realize that all of us have Google and encyclopedias and can go and look this stuff up at any point and see that Milligan is actually the same effing case. Ladies and gentlemen, the originalists, this is the new The Aristocrats punchline. These guys are so good at history. But because reading is fundamental, I went back to peek at the briefs in Milligan, and it is just utterly fucking insane that they're going to say none of these arguments were on the table in that case.

35:46So here is a statement from Alabama's application in Milligan, quote, this court's precedence and the Constitution make clear that a Section 2 plaintiff alleging vote dilution must first prioritize traditional redistricting criteria. That is part of Calais. Like, do you have to show that creating a second majority minority district advances the state's supposed aims like incumbency or partisan advantage? They also made the argument that compliance with the Voting Rights Act doesn't allow states to take into account race. The three-judge court's view of the Voting Rights Act makes VRA compliance irreconcilable with the U.S.

36:18Constitution. They asked the court to narrow the Voting Rights Act because they argued that jingles, as the lower courts were applying it, was unconstitutional. Asked and answered. Right. Right. But the Republican appointees really do seem determined to essentially retcon Allen v. Milligan into a case. I look that up, too. Am I using it properly, Melissa? You are. I made a note in the show note and then I was like, I think I'm using that right. And I think I was. So in any event, that's what they're trying to do, make this into a case in which no one raised and the court did not address any constitutional arguments at all.

36:53There were also really gross overtures from the Republican appointees in the argument to the lawyers who were challenging the Voting Rights Act along the lines of, well, tell us why we wouldn't be overruling Milligan. Like, please tell me why we're so principled and how we're doing amazing, sweeties. And they would say things like, do we really have to modify Milligan versus clarify it? Katherine Hahn winking face. Yeah, that was sort of later in the argument as they started to kind of enjoy themselves. Yeah, that's right. All right, another theme. I can't even decide if this is theme two or if the magical thinking was theme one and a half.

37:30Maybe this is two. I don't know. But there are a lot of themes here. In any event, this theme is how the court's embrace of partisan gerrymandering means that legislatures can not only get away with partisan gerrymandering, they can also get away with racial gerrymandering as long as we frame it. Yeah, it's a two for one. Yeah, it's a two for, for sure. So listeners, here's what I mean. When the court decided Ruscio versus Common Cause back in 2019, it said that federal courts left jurisdiction to hear partisan gerrymandering challenges. And part of the reason was because the court couldn't figure out a workable standard for determining how much partisanship was too much in adjudicating a gerrymander.

38:09And indeed, the court seemed to be of the view in Ruscio and elsewhere that partisanship is just endemic in the political process. And as such, it can't really be policed properly by the federal courts. Fine. When Ruscha was announced, we noted that although racial gerrymandering challenges remain justiciable, they were likely to be reframed as non-justiciable partisan gerrymandering challenges because historically, race and partisan membership are very closely aligned. Most black voters are Democrats. So especially in the South, if you're gerrymandering for partisan advantage, you might actually be boxing out some racial minorities who are of the other party.

38:49So you can draw a district that boxes out black voters, and when it's challenged, all you have to say is, I wasn't trying to racially discriminate. I was simply trying to maximize partisan advantage. Well, friend of the pod, Samuel Alito, touched on all of this when he suggested that it might be a good time to include partisanship among the gingels factors for determining whether an electoral system illegally dilutes the power of minorities. And by itself, that is not necessarily objectionable until you realize that doing so would erase the Voting Rights Act entirely by bootstrapping the permissibility of partisan gerrymandering into a regime that effectively blesses racial gerrymandering by redefining racially polarized voting as partisan or politically polarized voting.

39:37Note what a marked shift this is from Rucho, a case decided six years ago, which at least pretended to treat partisan gerrymandering as disdainful and destructive to democracy. So there the court wrote, quote, excessive partisanship and districting leads to results that reasonably seem unjust, end quote. Now, however, six years later, partisan gerrymandering appears to be Republicans' God-given right, so much so that partisan gerrymanders allow Republicans to violate the Voting Rights Act by drawing districts that result in unrepresentative legislatures and underrepresenting voters of color. And other voters, not just voters of color.

40:15All Ruscio purported to say is that the Constitution doesn't allow federal courts to remedy partisan gerrymanders. Not that partisan gerrymanders were consistent with the Constitution or something political parties were entitled to do. But apparently the Civil War Amendments like really actually wanted to give Donald Trump and the Republican Party, the guys trying to roll back the civil rights movement and resegregate the country, the ability to perpetually control Congress. Yeah. That was their aim. Yeah. So I think, you know, just like its attempt to recast Milligan, the court is here really trying to recast Rucho as not a case about the limits of federal courts authority.

40:54Right. So as Leah was just saying, Rucho is ostensibly a political question doctrine case, but instead they are treating it as a celebration of partisan gerrymandering. Kavanaugh also at points seem to be trying to turn Rucho into some kind of change circumstance or intervening development that may be rendered irrelevant all previous Voting Rights Act cases. Superseding intervening cause. Right. Which, you know, they're that but they have in the story decisis analysis, right? Like as you, Melissa, have written about there, they have long been fond of suggesting like if they can identify things that they can call, you know, change circumstances, they might be able to get out from under the weight of inconvenient precedent.

41:34So if there's precedent that is squarely on the side of the constitutionality of the Voting Rights Act, but this convenient intervening precedent can be recast as blessing on the merits partisan gerrymandering, maybe that weakens the force of these other inconvenient precedents. So maybe before Rucho, no legislature could admit to engaging in partisan gerrymandering, which means that it's all a totally new world and a different set of questions now when a state can say permissibly that it's engaging in political gerrymandering, not racial gerrymandering. It's going to make a great listicle. Yes.

42:10All right. I guess, unfortunately, we're kind of in one of our own listicles because we're getting to theme three. It's OK. I learned it from watching you, Brett. I think our listicles are better. Are there at least complete sentences? Complete sentences. And there's like citations in there. We put some thought into it. I put our listicles against his any day. And this one is a return to one of Leah's term themes from our term preview, which is the kind of when is time's up for Section 2 of the Voting Rights Act. And what I mean by that is the Republican appointees on the court, or at least some of them, really seem to think that the 14th and the 15th amendments have an expiration date and that that expiration date is right now.

42:55Or maybe they think that the amendments are okay, but legislation to implement them has an expiration date and that expiration date is right now. Or maybe the 14th endures in their particular reading of it and it has overtaken the 15th, which has expired. I think there's lots of different possibilities, but whatever it is, Kavanaugh's direction. Time is up. There's a shot clock. Let's play Kavanaugh leaning into this. As you know, is that this court's cases in a variety of contexts have said that race-based remedies are permissible for a period of time, sometimes for a long period of time, decades in some cases, but that they should not be indefinite and should have an endpoint.

43:40I'm asking what you think the time limit on that should be, or there really shouldn't be a time limit. I think you might be saying there shouldn't be a time limit unless Congress chooses one. But part of strict scrutiny, again, is the temporal limit that's been part of strict scrutiny for a long time. I would just like to note that the idea that strict scrutiny requires a time limit is made up. Magical thinking. And yet, Coach K is clearly very committed to this notion that civil rights are on a shot clock. He has been trying for years to convince us that this is actually part of the court's equal protection jurisprudence.

44:20He wrote about it in his concurrence in Milligan. He wrote about it in his concurrence in SFFA. And he brought it up again in this oral argument. So this is really trying to make fetch and time limits happen. Yes. Except we don't have anyone. There's no Regina George here to tell him it's never going to happen. I'll play Regina any day. Yeah, I wish you had a vote in this. This is like literally a court of Gretchen Wieners. Yes. Yes. So in response to this obsession with time limits, Janay Nelson tried to push back, acknowledging it's true that Section 5 of the Voting Rights Act had time limits, but Section 2 never did.

45:03And the 15th Amendment certainly does not. She drew a distinction between the statute, which prohibits certain conduct, and the remedies for violations of the statute. As Nelson put it, statutes don't dissolve just because race may be involved in particular remedies, but there are frequently time limits placed on particular remedies. And both Justices Jackson and Kagan jumped in at various points to push back on this in what I thought was a very clever way that echoed Nelson's own intervention. So basically, they seem to be saying that the Jingles test, which, again, the court has used for decades to implement Section 2, is already very hard to satisfy and requires consulting current conditions.

45:47And they seem to be saying this, I think, to mollify Brett Kavanaugh. Like, you know, like, this is what you want. It's working just as you want. So let's roll the tape. It's a pretty significant showing to establish that unequal opportunity of electoral processes is happening in a situation. That's correct. Jingles is an exacting test. It is data obsessive. It brings in experts and many other forms of evidence to establish a racial violation. There are many cases where the plaintiffs fail in bringing the Jingles I precondition or Jingles II or Jingles III before they even get to the totality of the circumstances.

46:28So if we're talking about a time limit, General, I mean, what Jingles does, and, you know, the idea that this is like 50 years later, this is not a kind of Shelby County thing where one could say that Congress had acted and 50 years later, you know, the conditions on the ground might have changed and there would be no way to respond to that change. Because what Jingles does and what these Section 2 suits do is they ask about current conditions and they ask whether those current conditions show vote dilution, which is violative of Section 2. So they say, is there racial segregation, racial residential segregation now?

47:13Is there racially polarized voting now? I just want to note that the escalating rage in Justice Kagan's voice is my personality. I felt very seen and heard from this. But I think, you know, the point or problem is it's true that, of course, Jingles takes into account current conditions. It's also true that these remedies are only ordered when there is a violation, a finding of unlawful discrimination of the Voting Rights Act. But these guys don't think that's real discrimination because the TLDR of so many of the court's cases is that suggesting white people are engaged in discrimination is really awful.

47:58probably itself is a form of discrimination. And it simultaneously maintains there is no racial discrimination against racial minorities unless you say you're racially discriminating and wear your white hood while you say it. Right. Because engaging, I think, in the way that both Nelson in response and Justices Jackson and Kagan in those clips that you played credits as a good faith argument, this, well, there need to be some kind of limits. And it sort of says, OK, so say that's true, the limits are already in the statute. These maps get redrawn every decade anyway. So none of this stuff remains like in effect in perpetuity.

48:34Jingles is hard to satisfy. Section two, successful claims are actually declining over time. So like all the stuff you're worried about, you don't need to worry about. Like that's a response to a good faith objection. But if you think the whole endeavor is unlawful and unconstitutional, these responses might not actually get very far. Yeah.

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50:32All right. There's yet another theme, and this one I think harkens back to Justice Sotomayor's opening question. Separate and apart from whether there is an expiration date on the Voting Rights Act or the Constitution writ large, the bottom line question here is Section 2 unconstitutional. And I just want to say, by way of a preface, when John Roberts wrote his majority opinion in 2013, Shelby County v. Holder, and he totally dismantled the preclearance regime, he assured us that Section 2 still endured and was still a way for minority voters to ensure that their rights could be vindicated under the Voting Rights Act.

51:09Well, here we are. True in 2013. Well, and this is the question. This goes back to the point Kate was making. Has there been a superseding intervening event that would make Section 2 now? That superseding intervening event is the confirmation of a sixth Republican appointee. Turns out, change circumstance, fuck previous precedent. All true, but he didn't mean that. His real question was, did my opinion in students for fair admissions versus Harvard, is that the intervening superseding event that now makes section two? Put it in a blender, you got some SFFA, you got some Rucho, and bam. So, I mean, this was actually wild to me how a very limited case about college admissions now becomes a question of whether or not a key provision of a super statute that literally brought minorities into the body politic is still constitutional.

52:03So in the Syri-Adam questioning, Justice Sotomayor asked Janae Nelson, why would the VRA be unconstitutional in light of decisions like students for fair admissions? And she responded by distinguishing the legal violation here, saying that the legislature drew districts that reduced minority voters power and the remedy, rectifying legislative maps that result in white voters being overrepresented. And she then argued that SFFA actually allows race to be used when there is a legal finding of discrimination, like when you have a bad map and you then draw a new map that is not bad. Right? Right. But this also gets back to this idea of like, what do they think is discrimination?

52:49And Injene's answer here, she also invoked the idea that Congress deserves some deference in supplying remedies for constitutional violations that might be difficult to prove, like intentional racial discrimination. Justice Kavanaugh responded, that deference isn't appropriate when dealing with the Equal Protection Clause, which would be news to the Reconstruction Amendments. Right? Like, did you realize there's a Section 5 to the 14th Amendment, which gives the Congress the power to enforce the amendments? Like, same thing in the 15th Amendment. There's a Section 2. Did he not read to the end?

53:25Also, weren't you there for Trump versus Anderson when we couldn't even do anything about Section 3 of the 14th Amendment before Congress stepped in? So he's read Section 3, but I just don't think he's gone all the way to 5. He just stopped right there. Yeah, I think that's, yeah. He got the 3 confused with the 5. He's like, this is it. Yeah, that's it. So, I mean, all this to say, like, it is very clear what these guys think discrimination is and isn't. And at one point, Louisiana Solicitor General, who was, you know, marching to the same tune, referred to, quote, this court's dedication to fixing race-based discrimination.

54:02My eyes rolled out of the back of my head. Yeah. L-O-L. Except for I thought he actually might have been making an inadvertently profound point if he meant fixing in the sense of setting it in stone, not like bending or stopping it. Like maybe he had a point. Yeah. Yeah. So, yeah. Like a fixture. Yeah, exactly. So this court wants that. I don't think that's necessarily wrong. And, you know, I think that might be especially true because in the same argument, the Louisiana Solicitor General admitted that Louisiana would never have drawn a second black district if it was not forced to. Shocking. I know.

54:39I know. Anyway, so the real racial discrimination here isn't drawing maps in ways that would exclude black voters from being represented. The real racial discrimination is trying to do something about the exclusion or diminution of black voters power. So trying to prohibit maps that just so happen to result in white voters being overrepresented and black voters being underrepresented. That's the real racial problem here. Yeah. And in case you thought it was just the advocates revealing what they think real discrimination is, you know, drawing districts that ensure some modicum of black electoral power, it wasn't just the advocates.

55:17So here is one Neil M. Gorsuch. You said states have more breathing room. So do they have the breathing room to intentionally discriminate on the basis of race? They don't have breathing room to intentionally discriminate on the basis of race, they have breathing room to use race to remedy their own discrimination. And so there's one possible position here, and it's clear that both Justice Gorsuch and Justice Thomas are here. And that position is that any Section 2 remedies that touch on race at all are presumptively unconstitutional. Or maybe it's just that Section 2 is unconstitutional, full stop.

55:52That's a possibility. Another possibility that would get too much the same place is the conclusion that complying with the VRA is no longer a compelling governmental interest. So here's the attorney for the appellees discussing that point. Section 2 effects findings alone can no longer justify the widespread stereotyping of American voters based on race in violation of the 14th and 15th Amendments. In plain English, they are saying, no problem, nothing to see when white legislatures draw districts where white voters are overrepresented. There is nothing for Congress to remedy in those cases. And because that Missouri lawyer made a reference to stereotyping, this is something that the challengers repeatedly invoked.

56:41And there was a very satisfying moment, I thought, when Justice Kagan made really short work of this allegation of stereotyping. So let's play that here. Mr. Grime, you and the Solicitor General spoke about stereotyping and how there's no place for stereotyping. But I'm wondering what stereotyping has to do with any of this. The requirements of a Section 2 vote dilution claim are essentially that there's residential segregation by race. That's not stereotyping. That's just where people live. and that there is racial block voting, essentially that whites won't vote for a black candidate. That's not stereotyping either.

57:21That's just what the data shows about racially block voting. All right. Is this the last theme? There's so many themes. For now, this is the last. OK. And that is that this court, or at least some justices, seemed during this argument significantly more extreme than the Trump Justice Department, which is really saying something. And I'll just make one point on that theme, which is that Mupin, who is one of the deputy solicitor generals, essentially was kind of disclaiming asking the court to announce a test that only intentional discrimination can be remedied. And the other two lawyers were like a little bit dodgy about exactly where they stood on that, but I think basically did seem to concede that they really are asking for an intent only test.

58:08And Mupin was like, no, we're actually not saying that. You know, whether you take that at face value or not, I don't know. But he at least did say it. Well, he wanted the court to effectively adopt an intentional discrimination standard while saying they weren't. And kind of along these lines, you know, he basically said to Justice Alito, like, loved your work in Brnovich versus DNC, my guy. Like, let's do that. But for vote dilution claims. And just to refresh your recollection, Brnovich versus DNC was the Alito opinion from a few years ago that made it far, far, far more difficult to establish a Section 2 violation for vote denial claims.

58:45And here they're basically saying just do that for vote dilution claims and we'd be good with that, too. And finally, if you want to know what the upshot of all of this is going to be, there are some really sobering real-world consequences to the likelihood of both Louisiana and the federal government prevailing in this case. So Nate Cohn ran an analysis or projection that suggested that if Section 2 of the Voting Rights Act fell, then Democrats might need to win the national popular vote by five to six points in order to take control of the House of Representatives. and everyone seems to realize that the consequences of a decision here are likely to be very stark, although the federal government tried to wave it away.

59:28And let's play that clip. If you look at the districts, there are only 15 majority black districts. So even if we're not even urging Section 2 to be eliminated, but even if you eliminated Section 2 entirely, fully 75 percent of the black congressmen in this country are in districts that are not protected by Section 2. I mean, just to underscore what we just heard, according to the federal government, 15 fewer black representatives in Congress is no big deal. I actually think you meant to say it's a good start. Well, I was going to ask, is that three fifths of the current? No, does that not go in the episode?

1:00:09I'm not sure. I'm not sure. But here is an actual truth teller, Janae Nelson, telling us what is really at stake in Louisiana, but in many other states. If we take Louisiana as one example, every congressional member who is black was elected from a VRA Opportunity District. We only have the diversity that we see across the South, for example, because of litigation that forced the creation of Opportunity Districts under the Voting Rights Act. Every justice in Louisiana has been elected through a VRA opportunity district, and nearly all legislative representatives have been elected on those same districts.

1:00:52So Louisiana alone is an example of how important it is to have Section 2 continue to be enforced to create these opportunities. Because the South. Because the South. All right. All right. So we could go on, but I think we hit some lowlights. I mean, in terms of bottom line kind of takeaways or predictions, it will be bad. I feel pretty confident saying that. I think to that last set of observations about the federal government's argument, they could do some version of what the federal government is asking and, you know, not say they are touching Section 2 on its own, just, you know, making it much more difficult to apply it in any instance.

1:01:32It doesn't have a threshold finding of intentional discrimination in a very similar way to sort of Melissa was talking earlier about the way Shelby County, you know, actually says they're just invalidating the coverage formula. But obviously, it eliminates Section 5, maybe something that is superficially not the most radical or extreme version of the court strikes down the last remaining pillar of the Voting Rights Act, but in kind of actuality does that. Yeah, I agree. They are going to make it practically impossible to enforce Section 2 of the Voting Rights Act and to remedy cases of vote dilution.

1:02:08I don't know how they're going to do it. I'm not sure they even know how they're going to do it, but they're going to do it. Co-sign all of this. All I want to say is back in 2023 when Allen v. Milligan came out, didn't I say that that was just an ittle? Like they would be back and they would totally trash the Voting Rights Act. And so many people got mad at me, like friends in the civil rights community were like, you know, why are you harshing on this victory? Like LDF won this victory. And I know, but I was just like, you could see it. You could see it in the Thomas separate opinion. You could see it in the Kavanaugh separate opinion.

1:02:40Like it was coming. And so, again, this is not like a fight with my husband where I take real pleasure in being right. I take no pleasure in being right here. But like they show us continually who they are. Like, just, like, prepare for it. Don't get wrapped up in, like, one minimal victory that they literally yank away from you. Like, literally, like, Lucy and the fucking football. Yeah. I can confirm that the day Allen versus Milligan dropped, you were already like, don't trust this for one second. And it seems like you're right. Yeah. So now that you have a sense for how this argument went, and speaking of when they show you who they are, believe them, we wanted to, as promised, play the hot mic moment that was captured at the end of the oral argument in Louisiana versus Calais.

1:03:35So, again, listen for what Justice Thomas is saying. So you got one, so bad. You got to be here. And this was just grotesque. Like, I don't know exactly what he meant by it. Was it, we're having a good time? We're not going to get dragged through the mud for dealing with this? I don't know. But when we heard this live, we knew, like, we knew they would try to sanitize the record and remove this from the audio they would post on the website. And sure enough, they did. So we grabbed it from the live stream before it would be erased, because these guys truly love to rewrite history into fiction, even in real time.

1:04:17Like they don't want you to know how much they fucking enjoy and joke about ending the Voting Rights Act. Okay, there were other arguments. I know, hard to believe, but there were. We will cover them relatively briefly, but we do want to spend a little bit of time on them. And the next one we're going to talk about is Beau versus United States, which is a complicated federal courts and habeas case, which is, of course, Leah Lippman's bat signal. So Leah, take it away. So in the interest of time, and again, the fact that I'm giving up airtime on these issues should underscore how significant Louisiana v.

1:04:52Calais is, but we're not going to talk a lot about this one. It does present two questions about whether some statutory limitations that apply to habeas petitions brought by people who are convicted in state court also apply to habeas petitions brought by people who are convicted in federal court. The two limits are, one, whether claims that are presented in previous habeas petitions must be dismissed when they appear in second or successive habeas petitions. And the second is whether you can file a cert petition or request panel rehearing after a court of appeals has granted or denied permission to file a second or successive habeas petition.

1:05:28There are two notable moments in the argument, and they came when both Justices Gorsuch and Alito really knocked the defendant petitioner's argument on the ground that every court of appeals had previously rejected it, which I just have to say was really rich coming from two guys who routinely accept arguments that have been rejected by every single court of appeals before they happily embrace it. So then that includes arguments about disadvantaging habeas petitioners and preventing them from introducing evidence of their innocence. And if you're wondering what I'm referring to, it is Shin versus Martinez Ramirez.

1:06:08So anyway, just just mind blowing how they just did this with a straight face. Now they're humble. Restrained. One other moment in the argument we wanted to actually play was Justice Alito offering a hot take on textualism. On the re-litigation bar, what's your response to the argument that Congress may not have been particularly attentive to terminology, but that the thrust of what it was trying to do was to apply the same rules to federal and state prisoners? apparently we're no longer doing textualism just thrusting just the tip that's now melissa's bad signal just thrusting oh my god that's literally what he says he said the thrust he says we're not doing textualism really attentive to terminology just the thrust no terminology just the thrust Just the thrusts.

1:07:16He said it. And we take our joy where we can find it, don't we? We can. All right. I think he does. He puts these little Easter eggs in for us. Anyway. Okay. So there was another oral argument. This was in Ellenberg versus United States, where the court has to decide whether restitution awards under the Mandatory Victims Restitution Act might be criminal punishment or civil punishment. And it's actually a very narrow question about whether restitution is penal in nature, which might mean that if it is penal in nature, it can't be applied retroactively under the ex post facto clause. We say might, and this also explains why it's a very narrow question, because there are other factors that courts have to consider when determining whether ex post facto clause prohibits the government from retroactively applying a particular provision.

1:08:03And those other factors will still have to be weighed before a court decides whether restitution under this statute can be applied retroactively. It did seem like the court is going to say, as both the federal government and petitioner are arguing in this case, that restitution is penal in nature. And as Leah just said, because both the federal government and the petitioner are arguing that this kind of restitution is criminal, the court appointed an amicus, John Bash, to take the other position. And I misspoke last week when I said Bash was invited to argue in Barrett versus United States. That was actually Luke McLeod.

1:08:37And there was another attorney, Kasdan Mitchell, who was invited to argue part of Beau v. United States, the habeas case that we were just talking about. For folks who aren't familiar with the phenomenon, the court occasionally invites a party to argue on one side of a case or one issue in a case, usually because the federal government has changed positions and there would otherwise be no one arguing in support of the judgment below. But it is really striking to see this happen three times in one sitting. And it is also really striking how strong a type the justices have when it comes to issuing these invitations.

1:09:10So we mentioned last week that there were only eight women arguing in the October sitting. One of those is Kasdan Mitchell. But the justices could help bump that number up with more such invitations. But they pretty clearly have very limited interest in doing that. We should note that Kate knows a lot about these invitations because she wrote a piece called Friends of the Court, Evaluating the Supreme Court's Amicus Invitations that was published in the 2016 volume of the Cornell Law Review. And she catalogs all of those invitations and basically goes through and does a demographic survey of everyone who is invited to argue by the justices.

1:09:46And it turns out the justices really do have a type. And it's primarily their former clerks and other dudes. So you know what they say, just the type. I'll be here all week. I should say that was a piece like a decade ago. And I had some ridiculous notion that like having, you know, directed some attention at how absurdly undiverse the pool of amicus invitees was. They might feel some sense of shame and make some minor adjustments. Like make a remedial map after being shown the illustrative map that was clearly discriminatory on the basis of gender. they might make a remedial map? When you put it that way, they were never going to do that.

1:10:26And in fact, they haven't. It seems like they've just doubled down. The last 10 years have not been any better than the ones I was cataloging. And the last case in this sitting that we'll talk about was Case v. Montana. At issue in this case is what standard applies to police officers' decision to enter a home because they think someone inside is in need of emergency assistance? The Fourth Amendment generally prevents officers from entering a home without a warrant. And getting a warrant requires convincing a judge that there's probable cause to believe someone committed a crime. But there are exceptions to the warrant requirement.

1:10:58Among other things, the court has allowed warrantless entries, quote, when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury, end quote. But it has rejected like a general kind of caretaking or emergency exception to the warrant requirement. So the question in case is, in order to enter a home to provide emergency aid, what kind of showing do officers have to make? Seems clear that the court isn't going to require probable cause, the criminal standard, to believe that there is some kind of an emergency, as the petitioner was arguing here.

1:11:32And I'm not sure that anyone in the court would actually vote for that standard. It seems like they want something less, something that doesn't disincentivize officers from going in to render aid in exigent circumstances. And that was made clear through multiple questions. So I think the only question here is whether the court provides a standard and sends it back to the state courts to apply or simply applies the new standard that they come up with here and just goes forward. One final possible piece of SCOTUS news. Donald Trump has said he thinks he is going to attend the oral arguments in the tariffs case.

1:12:10If we are not allowed to use what other people use against us, there's no defense. It would be a disaster for America. That's why I think I'm going to go to the Supreme Court to watch it. I've not done that. And I had some pretty big cases. I think it's one of the most important cases ever brought. Maybe he'll do this to send the justices some hand signals. Has anyone ever gone up to the bench and thanked them afterwards? After oral arguments? That would be amazing. Thank you. I won't forget this. Yeah. First time for everything. I mean, obviously, it'll be kind of a spectacle. if he is there.

1:12:46The argument will be in part about his wholly unsupported claims that emergency conditions require these insane tariffs. And if he's sitting right there, it might, you know, cast a shadow over the proceedings, which maybe is his point. But I mean, I am genuinely curious. I have not been to arguments for a while. I don't think any of us have. And I probably can't make the time to go even if I could get a seat, but I'm sort of tempted to try. And I was reminded when I saw this, you know, him floating the possibility of the fact that Trump and Melania were both in the courtroom for Gorsuch's investiture, which I was in the press section for.

1:13:22And they're both really tall. And the courtroom seating is, as you guys both know, like really small and cramped. And they seemed very uncomfortable. It's like, you know, wooden benches. There's no padding, like the angle's not great. And that was like, I don't know, 10, 15 minutes. So I find it kind of hard to see him suffering through hours of the tariff case. I feel like those will be very long arguments, but I guess we'll see. And whether or not we actually venture down to D.C. to see the arguments in the tariff case, we are definitely going to be in D.C. that week to unpack them before a live audience at CricketCon two days later on Friday, November 7th.

1:14:01And yes, listeners, you already know this, but I'm going to say it anyway. CricketCon is the event that keeps on giving. It is our day-long November 7th CricketCon event that now features three stages, which means even more guests. And the latest additions to our lineup include Jen Psaki, Jessica Valenti, Melissa Morales, Simone Sanders Townsend, Tim Miller, Waleed Shahid, Adam Mockler, and Kai Polanco. They will join Senator Ruben Gallego, Representative Sarah McBride, Governor Andy Beshear, and many more. And just a reminder, we will be closing out CricketCon. All those people were just a warm-up act for strict scrutiny.

1:14:36You heard it here, folks. We are going to have a live strict scrutiny show. Crooked Con ticket holders can attend our show as well as live tapings of Hysteria and Crooked subscriber-exclusive show terminally online. It's not just what we call Kate in our spare time. So grab tickets and get more updates on the programming. Just head on over to crookedcon.com. And other developments in Article 2. So another week, another round of presidential threats of yet more illegal and unconstitutional targeting of political opponents and critics, this time from the Oval Office, where he talked about a recent public event by Jack Smith.

1:15:15That event, the one involving Jack Smith, was in London, and it was a conversation between Smith and Andrew Weissmith. The event was hosted by friend of the pod, Aaron Delaney, at the University College London's Global Center for Democratic Constitutionalism. I listened to part of it. It was a very good conversation. It was also a conversation that apparently was very triggering to President Trump, who at the Oval Office presser suggested that he might go after Smith. He then mentioned Andrew Weissman and Lisa Monaco, Biden's former deputy attorney general. And he did all this in the Oval Office.

1:15:47And it's like if the insane like gold flourishes everywhere wasn't enough, we have to watch him now explicitly promise multiple constitutional violations on camera with his attorney general and deputy attorney general and FBI director looking on. And I mean, I find from week to week, I don't know about you two, sort of hard to predict what will break me. And this really kind of broke me this week. In addition to the persecuted white refugees and Voting Rights Act argument kind of collision, this was really pretty tough.

1:16:27Nothing breaks me. Okay, what else happened? So briefly on District Court Watch, last week, a California district court preliminarily enjoined the executive branch from engaging in mass layoffs, which they're describing as reductions in force during the government shutdown. The opinion describes the absolute chaos in agencies as furloughed employees can't even check their emails to find out if they are receiving reduction in force notices. Pregnant or seriously ill employees don't know how to find out the status of their health insurance and more. As the judge noted, in addition to the chaos, quote, it is also far from normal for an administration to fire line level civilian employees during a government shutdown as a way to punish the opposing political party.

1:17:10But this is precisely what President Trump has announced he is doing. And at the hearing, the DOJ conspicuously declined to defend the government's reduction in force orders on the merits. Instead, just made some procedural arguments about how the plaintiffs, government workers and their union should bring their challenge administratively. So I thought that was interesting. All right. One other district court development we wanted to mention, and this is in a case we have mentioned before, brought by journalists and civil rights groups in Chicago, challenging some of ICE's egregious tactics in the streets of that city, which have continued and only ratcheted up in the last week.

1:17:45So in that case, the district judge has now ordered ICE agents to wear body cameras. She had previously ordered them to wear badges with names or numbers. And she seems really concerned about possible defiance of her order. This is all kind of breaking in real time without any written order at the time of our recording. But I think there will be further developments in this case, which we will keep an eye on. And speaking of things developing quickly, the U.S. Court of Appeals for the Seventh Circuit decided to leave in place the district court order blocking the deployment of the National Guard in Chicago, which means we may be off to the shadow docket quite soon.

1:18:24All right. Moving away from Article 2, brace yourselves, ladies. We have some news from Article 1. Yes? What's that? Is it Congress calling? I barely know you. Where have you been? Well, you got off the couch. We almost never mention Congress these days because really, what is there to say? But this week, it seems like Congress, like Van Winkle, woke up and has done something, something worth talking about, or not, or not done something, as the case may be. And this is what I mean. Speaker Mike Johnson is now on his third week of refusing to seat Arizona Congresswoman-elect Adelita Grijalva. She was elected to Congress in a special election back in September.

1:19:11Yes, September, many months ago. That's literally enough of time for the Supreme Court to overrule a former president, like just a month. That's all it would take. Despite the fact that Grijalva won by an enormous margin and is already in D.C., ready to get to work for the people of her district who elected her in a free and fair election, Speaker Johnson has still not sworn her into Congress. Grijalva and many Democrats think that he is delaying because she has pledged to sign a petition that would force a vote to release a tranche of Jeffrey Epstein documents. She would be the 218th signature, which in the House is a magic number for getting things done.

1:19:52And that seems to be all he needs to keep her out of her seat. But do not worry. The Democrats are on the case and are keeping the pressure on. More to come, I am sure. All right. So that is all the news we have time for today. But next up is a conversation that Leah had with Joy's fans about her new book, Giving Up is Unforgivable. And after that, our favorite things.

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1:21:25Select podcast in the survey and be sure to select strict scrutiny in the dropdown menu that follows. In moments like these, it's easy to feel overwhelmed and even easier to feel powerless, but we are neither. I'm Stacey Abrams, and on my podcast, Assembly Required, I take on each executive action, legislative battle, and breaking news moment by asking three questions. What's really happening? What can we do about it? And how do we keep going together? This is a space for clarity, strategy, and hope rooted in action, not denial. New episodes of Assembly Required drop Tuesdays. Tune in wherever you get your podcasts and on YouTube.

1:22:24Okay, not going to lie, optimism is in short supply right now, and the landscape can feel pretty bleak. Basically, anytime I talk to anyone, something like I need to tune out or it's overwhelming comes up. So in order to give us the shot of hopium and resilience and fight we need, I am delighted to be joined by Joyce Vance, who's here to talk about her fantastic new book, Giving Up is Unforgivable, a manual for keeping democracy, which is out tomorrow. Joyce needs no introduction, but here's a quick one. She's a former U.S. attorney for the Northern District of Alabama, a professor of practice at the University of Alabama Law School, MSNBC legal analyst, co-host of Sisters in Law podcast, author of the Civil Discourse Substack, and today's Strict Scrutiny guest.

1:23:02Welcome to the show, Joyce. Thank you so much for having me and for that very, very enthusiastic introduction. So I want to drive home the need for the book and its timeliness, in part by asking you about one of the latest attacks on our system and the rule of law. And that's, of course, the indictment of John Bolton. So could you just quickly share what the indictment is for and why it's so concerning? Yeah. So it's interesting. I may have an aberrant view on the indictment of John Bolton because I view it very differently than I view the indictments that were brought against Jim Comey and Letitia James in the Eastern District of Virginia.

1:23:40This new indictment, John Bolton, is out of the District of Maryland. The acting U.S. attorney in that district is a career prosecutor. and she did not go into the grand jury on her own, as did Trump's appointee in the Eastern District to get this indictment. Instead, two senior career prosecutors in her office, joined by lawyers from DOJ's National Security Division, went in and indicted John Bolton. This indictment looks a lot more like the traditional indictment I'm used to seeing in a good case. 20 pages of factual predicate, and if DOJ has the evidence they say they have, then they have a strong case, not an airtight case, not a case that Bolton can't defend against.

1:24:23But this is not a case where you can look at the indictment and say on its face, this indictment was not warranted. You can say that with Comey and with James. And so here's the problem that I think you're driving at. Donald Trump has so compromised public confidence in the integrity of the criminal justice system that people now think, You know, whenever whenever the defendant in a case is somebody that he's targeted and he has targeted John Bolton outrageously, then people will will be uncomfortable. Well, is what's in the complaint is are all of the allegations in the indictment true? Right.

1:25:00Can we trust the Justice Department? To me, that's that's really one of Donald Trump's greatest sins. Yeah. And I should say, if you want to hear more about this, you should read Joyce's subsect civil discourse, which had a great post about this. But yes, part of what concerns me is I don't know why this case was brought against John Bolton. And I can look at other cases, including that involving David Petraeus, where it looked like, you know, someone who did something similar to John Bolton got much more lenient treatment anyways. Well, can we just belabor the Petraeus point for a second? Because I think it's fascinating.

1:25:33That case was brought during the Obama administration by one of my friends who was one of the North Carolina U.S. attorneys, Ann Tompkins, who handled that case very deftly. Petraeus' conduct was very similar, right? It involved using a shared email account and not a family member like Bolton, but a woman he was having an affair with who was his biographer to share classified information. Petraeus was permitted to plead to a misdemeanor. And that, I think, is the comparison. And something DOJ strives for is uniformity, treats similar cases alike. So what I'll be listening for is whether or not these prosecutors can distinguish this situation from Petraeus and explain why Bolton's conduct is more serious.

1:26:18Absolutely. So the point you made about Donald Trump kind of defiling our institutions, including the Department of Justice goes directly to your book because there is a chapter that is entitled The Myth of Broken Institutions. And it begins this way. In the popular imagination, Donald Trump is invincible. But that's a myth, not a reality. And it goes on to explain how many of our institutions have held. So I agree in many respects. This was especially true during Trump 1.0. I guess I would be curious to hear, like, how many institutions do you think have held up in Trump 2.0? And how do we communicate to people the imperative of reforming our institutions that might stand in the way of getting us out of this mess, while also not causing people to lose faith and check out from the system?

1:27:08Yeah, so that question, you've actually just defined the syllabus for my semester-long democratic institutions class. I think that this is a really important question. And can I just start by saying, it's not a question just for lawyers or politicians. This is the foundational question as Americans that we are both capable, you know, you don't have to have gone to law school to understand or be an expert in the institutions. So I think that this is important, sort of like a shared civics education endeavor that we all take part in. What we see, because, you know, we live in a world where the media has to sell whatever it is they're selling, advertising to support their outlets.

1:27:48So we don't hear the good stories as often as we see the cracks, right? The chinks in the armor of democracy are what we see. And so the institutions, when you think about it writ large, you know, you can talk about big letter institutions, the executive branch, the executive branch agencies, Congress, the courts. And so we see where there are problems more readily than we see where there is strength. And because those institutions are made up of people, and that's sort of an ever-changing cast of characters, there's always the opportunity to bolster the institutions. So the institution that's nearest and dearest to my heart is the Justice Department.

1:28:29We see so much strength there, right? We see prosecutors who have resigned and walked away rather than doing what they believe is the wrong thing. What we don't see is the thousands of prosecutors across the country who every day keep their heads down, do their jobs, take seriously their obligation to keep their communities safe. And who even even as we're speaking, I think, are very deliberately confronting what they will do if they are told by political forces to make a decision they disagree with. Look, in my old office, we really hated Washington. I'm just going to be frank. Like we resented any time folks in D.C.

1:29:10tried to intrude in our decision making process. At one point, I had a prosecutor in a very sensitive public corruption case. The attorney general had asked for a briefing and he said, I'm not going to share my evidence. It might get compromised. And I was like, oh, friend, we're going to share share our evidence with the attorney general of the United States. But the point that I'm making is for prosecutors, this is not a political matter. The idea, no matter who the president is, that he or she would tell you how to handle one of your cases is so foreign to prosecutor DNA. This is a strong institution.

1:29:45It is being tested. Some of the folks at the top are not doing their jobs. But I think we'll see this institution reemerge. I wanted to put a quick plug in for the book in light of something you said, which is about shared civics education. So I just got back from a trip to LA and a woman who was a doctor was telling me she has a reading group of her friends and they are reading the Federalist Papers. Now, this book does a superb job of weaving in some Federalist Papers, some history, but situating it alongside what is happening in our current day. So if you have a reading group like that, this is literally the book for you.

1:30:22And there is, in another chapter, you wrote something that really resonated with me. And that is, quote, I hope this book has made the case that it's true. The next election is always the most important one of our lives, end quote. This was a great perspective because to me it responds to critiques of it can't be that like every four years, right, you are beating the drums and telling me I need to like put all I can, you know, on the field. And so I guess, like, was that kind of what you were responding to as you were situating, you know, the energy we all need to have for our democracy? Yeah, very, very much so.

1:30:59Like every other voter in America, I sort of roll my eyes and take another swig of my drink, whatever it might be at the moment. Every time a politician tells me the next election is the most important election of our lives. But we now live in an era where that is profoundly true. Right. The midterm elections will determine whether or not we have the ability to reestablish guardrails that will protect democracy. If Democrats and not even just Democrats, but pro-democracy candidates at every level of government, federal, state and local, when in this next election, that's a game changer. You know, 2028, the presidential election, it will be a game changer.

1:31:40But also Congress, the Senate, who your governor is. We're seeing that now, right? we're seeing real federalism in play with governors and mayors standing up for democracy, too. So yeah, sadly, the next election is always going to be the most important one. Speaking of, you know, like weaving history into current day, the book makes an elegant argument that we are right now facing a new lost cause. And that new lost cause is January 6. So can you elaborate on this argument and how January 6th has become a new lost cause and what that says about our politics? So I am not a native Southerner. I'm born and raised in Los Angeles, but I have lived in the South for long enough to acquire the accent and also to absorb the cultural, some aspects of the cultural understanding of the Confederacy, where it's romanticized and viewed as a sentimental, patriotic lost cause, which is not my view as someone who has a very different view of slavery.

1:32:43But in any event, that persistent myth in many ways was permitted to linger because what didn't happen at the end of the Civil War was accountability. Really, Confederate leaders got off relatively light. There was very little in the way of prosecution or jail time. And in the culture, they were resurrected in many ways as heroes. So fast forward to the modern day, I see a repetition of that with January 6th, where instead of being viewed as insurrection for many people, and for the president, right, who has abundantly pushed this narrative by pardoning people who were convicted for their conduct on January 6th.

1:33:27Referring to them as prisoners. Exactly, right. As patriots. You know, the patriots choir that they convened while they were still in custody. And this whole notion that these people who engaged in violence at the Capitol are sort of heroes, I think that that's become a second lost cause, a way of focusing Americans away from true patriotism and the constitutional basis for the Republic onto something much darker. Part of what is astonishing to me is that the lost cause and redemption took a while for the South to restore itself to a position of power and credibility, whereas January 6th has undergone that transformation in four years, which is, again, astonishing.

1:34:15So part of the book is to underscore that we are the cavalry, and it offers some rules for the cavalry. So I wanted to ask you about some of my favorite rules, and I was hoping you could elaborate on them. So this is my favorite part. Oh, I love it. This is again, we needed this book on this week in particular, after listening to the Supreme Court's Voting Rights Act argument, and knowing the court is likely poised to strike a big blow against our democracy. Like we need to be reminded that it's on us. And even if we have to dig in more, that's what you got to do. Okay. So one of my favorite was be in community.

1:34:55So could you elaborate on that one a little? So, you know, one of the great things about being the U.S. attorney in Birmingham is that you get to spend a lot of time with a lot of different people. And my personal favorite place to go, good Jewish girl that I am, is 16th Street Baptist Church in downtown Birmingham, the site of the bombing that killed four young girls during the civil rights era. But my favorite thing about being at 16th Street Baptist Church is the fact that I adore the pastor. We went through Leadership Birmingham together. The music is unbelievably moving. The call and response during church services is great.

1:35:36You have this feeling of warmth and support and of being nurtured and recharging your batteries and that you can take on the world and sort of right any wrongs. I think that's the feeling that we all need right now. This is a tough moment. I've talked to a lot of people who have said, my temper is frayed. I'm impatient. I had a conversation with a friend who told me a story about being mean to a waitress in a restaurant, which is just not in her DNA. And she was horrified by herself and ended up apologizing. I think that we're all living through that moment and being with other people who are like minded.

1:36:13Not only do we find support for the actions that we personally want to take to preserve democracy. I think it's just the mental health care that we all need right now. I feel that in my bones. I have been explaining to people whenever the question is, how are you? It is more zapped than I ever have been. And I know it is because of what is happening around us. But I think that ties into another one of the rules that I also really appreciated, which is understand that protecting democracy comes in a lot of flavors. And part of what I loved about this is we all find different things taxing, and we're all good at different things.

1:36:49And there are so many ways you can contribute to restoring and shoring up our democracy that this was really a call to figure out what you can do and how you can find that fight sustainable. So I wanted to ask you about that one too. Yeah. So, you know, what motivated me to write this, it's something I think about a lot, right? I mean, I'm a former dancer. I think dance can be a powerful form of protest. One of my students, my democratic institution students wrote a paper about art and democracy and working with her on the research, I just kept thinking, this is so powerful. And, you know, I have kids who would never in a million years go out and protest and hold a song, but they would write a short story or they would engage in some form of creative artwork collage or sort of a group traditional piece.

1:37:46And I think it's really important for us to say to everyone in our communities, there is a space for you to protect democracy and it has to be authentic for you and who you are and what you care about. So, you know, some people may hear about public health and want to work in that area. I think that's fabulous. And we desperately need that. Some people like us are nerdy, traditional legal academics. And, you know, we find this stuff compelling and fascinating. And that's our work. But some people are much more activated by the arts or by religion or by some form of science. I just think it's wonderful to live in a country where we have so much diversity.

1:38:26Yeah. And just on that art and culture point, I mean, art and culture are oftentimes ahead of law, and they can be really powerful ways of shaping culture in ways that actually lay the groundwork for legal change. I mean, going back to the Lost Cause movement, part of what made the Lost Cause movement successful is the way they depicted the Confederacy in books, in paintings, and whatnot. And so using art and culture to fight for our democracy, that is a very real tool. So one last rule that I'll ask you about, and that is decide who you are and stick to it. So what's behind this rule? Yeah. So look, I think the problem comes in compromise with the bully, right?

1:39:11I think you've got to just make a decision early on about what you will and what you won't tolerate. And this is sort of where we started, right? So many people are overwhelmed by this. They just want to unplug. They don't want to deal. They hate it. They want it to go away. And look, I don't criticize. I think we're all different. We all have different capabilities and situations. And you've got to be who you are. What I fear, though, are people who are, for instance, in government or at the Justice Department who think, OK, I can put up with this one degradation to stay in place and keep doing my job.

1:39:52And that, by the way, may be sort of a legitimate decision, right? I think that there are people that are struggling with that. Maybe I do have to go along a little bit so that I can act as an important barrier when important developments happen. But there are some things that you can't and won't tolerate. And I think where we saw that, frankly, was in the U.S. Attorney's Office in the Southern District of New York, when it became apparent that leadership at the Justice Department, sponsored from the White House, were going to dismiss the pending prosecution of Mayor Eric Adams on public corruption charges.

1:40:25A strong case. And it was very clear to them that this was politically motivated. And look, you don't dismiss cases against criminal defendants so that they can do the president a political favor. We saw resignations out of that office rather than having those people participate in dismissals. That is knowing who you are, drawing your line in the sand and at great personal cost, right? Leaving a job that you love for an unknown future where you may well be targeted because we all understand how MAGA works. But better that you do that than die a death by a thousand cuts. So I think we just all have to define that line for ourselves.

1:41:06Well, I think that is a great place to end. And I just want to emphasize again, if you found your local No Kings protests invigorating and you're wondering how to carry that energy forward, then this is the book for you. Again, this is Giving Up is Unforgivable, a manual for keeping democracy. It's not sugarcoating the story, but it will make you feel like we can win this fight. So thank you so much for joining, Joyce. Thank you for having me. that was a nice jolt of fired up energy and on the heels of the no kings protest no less so we also have some of our favorite things to share so last week i was traveling which means i was able to do a lot of reading i read jasmine guillery's new book flirting lessons loved it i also read the bow street runners series from lisa claypas and loved that as well i was traveling to la which I loved.

1:41:58I just love it there so much. And when I was there for an event at the Henry Museum, I got to meet a lot of wonderful West Coast stricties. I am not nearly as good as Melissa about remembering to write people's names down. But I wanted to say hello to Chris, Eric, Sky, Alexa, Ruth. And I'm sorry to those of you whose names I didn't write down. And to Darusha, who I met at the Los Angeles Airport Hotel as well. All right. I've got a couple of recommendations. One, a must read by Dave Posen and Jed Britton Purdy in the Boston Review. It's titled, What Are We Living Through? And it just sort of asks, are we in an authoritarian crisis?

1:42:37Are we in a period that is just really about exacerbating existing pathologies? Or is this just transformational constitutional politics a la FDR in the 30s? And I'm pretty sure the third is wrong. But one and two are sort of like interesting, different ways to understand the current moment, which I think, you know, matters a lot in terms of trying to chart a path out of it. And the other thing I wanted to mention was Adam Liptak's piece in The New York Times about a new essay by Virginia law professor Caleb Nelson. You know, and the Nelson piece itself very much also worth reading. It relies heavily on Leah's colleague Julian Mortensen.

1:43:10And it just basically concludes that the court is wrong to think that the vesting clause or anything else in Article 2 gives the president unlimited removal authority as the court will decide, like whether it does in the case involving the FTC and kind of in the case involving the Federal Reserve that are both on the docket. And Caleb Nelson is a very prominent originalist. And so, you know, maybe it matters. This is somebody that justices cite a lot and very much an ideological fellow traveler and basically says the path that you guys are on when it comes to presidential power is unmoored from constitutional text or history in a way many, many others have said for quite some time.

1:43:48But maybe it matters that he is now saying it. So definitely do recommend that. And actually, there's like the last sentence or two of Nelson's piece, I think, you know, basically says, even if it's not that clear what the history shows, the court should not pretend that its hands are tied. Like, it actually is okay for them to acknowledge they are taking into account the consequences of their decisions. And the fact that they might be unleashing the full exertion of a tyrannical disposition by empowering a president with kind of no constraints is something that they should be forced to contemplate.

1:44:20So recommend that. Okay. Nothing so highbrow from me. I want to recommend Rainbow Rowell's new book, Slow Dance. It is a departure from her usual YA fare. She usually is a young adult writer, Eleanor and Park, et cetera. But this book, Slow Dance, is for adults, and it's about a rekindled high school romance, and it's very sweet, and I like it a lot. I also, because I love a good title, was riveted when it came across my feed. Trace Maddox's The Lawyer, the Witch, and the Witness, Proving Witchcraft in English Courts in the Yale Journal of Law and Humanities. Obviously, very esoteric, not for everyone, but I found it to be a very interesting read about the rules of evidence in witchcraft trials in merry old England.

1:45:08So never say I'm not a Renaissance woman. I really am. And then finally, I finally saw one battle after another. And oh, my God, I told you, right? It was so good. Oh, my gosh, it was absolutely like I was like, first of all, it's a three hour movie. And you know that my favorite Broadway plays are the ones that are an hour and a half and have no intermission. Because if I get up to go to the bathroom. I'm just going to go home. Right. I literally had to go to the bathroom in the middle of this. And I almost gave myself a kidney infection just because I would not get up to go. Like it was that good.

1:45:44I thought it was absolutely incredible. My boy, Tony Goldwyn. Like, I can't believe we haven't even mentioned the Christmas adventurers in this. I did. No, no. I know. I know last time, but this time, because this case, Louisiana versus kelly was like pete christmas adventurers yes pete christmas adventurers um that's all i'm gonna say so yeah find your joy where you can indeed amen all right if history is written by the victors then traditional news media isn't doing much better we see the headlines we hear from the nation's most powerful leaders and we watch pundits analyze it all in studios far removed from the everyday people caught in the crosshairs.

1:46:28Not anymore. Alex Wagner wants to step away from the traditional media bubble and towards the folks who are most affected by our unprecedented times in her new show, Runaway Country with Alex Wagner. She'll bring you stories from the front lines and the voices of those who are all too often left out of the conversation. You can listen to the trailer now and make sure to tune in for the premiere of Runaway Country with Alex Wagner on October 23rd. New episodes will drop every Thursday. Make sure you subscribe wherever you get your podcasts and watch on YouTube.

1:47:24Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com slash at Strict Scrutiny Podcast. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app 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.

1:47:58In moments like these, it's easy to feel overwhelmed and even easier to feel powerless. But we are neither. I'm Stacey Abrams, and on my podcast, Assembly Required, I take on each executive action, legislative battle, and breaking news moment by asking three questions. What's really happening? What can we do about it? And how do we keep going together? This is a space for clarity, strategy, and hope rooted in action, not denial. New episodes of Assembly Required drop Tuesdays. Tune in wherever you get your podcasts and on YouTube.