How Low Can the DOJ Go?

You're not alone if it feels like groundhog day every morning when you read the news or even

“when you listen to what we're talking about here on Strix bootie. And while it's overwhelming,”

seeing the trajectory our country is on, we all show up every day trying to find ways to make it better, to educate our neighbors and to fight for democracy. And our friends at Americans United have been doing the same thing day in and day out for almost 80 years. This year alone, they filed three separate lawsuits against Trump's anti-Christian bias task force, which spoiler alert is anything but unbiased. AU has been tracking every mention of Christian Nationalist

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“weaponized for a power grab. But now isn't the time to give up. Now is the time to fight back”

against the growing authoritarianism in our country. Consider joining Americans United for Separation of Church and State. You can learn more by visiting AU.org/cricket because church state separation protects us all. Let's see if you got this place forward. It's no joke, but when I argue, man argues against you beautiful ladies like this, they're going to have the last word. She spoke not elegantly, but with unmistakable clarity, she said, "I ask no favor for my sex,

all I ask of our brethren is that they take their feet or follow us." Hello, and welcome back to Strix scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your host for today, I'm Leo Littman, and I'm Kate Shaw. Melissa is unfortunately away this week, but we have a jam packed episode for you anyway. We will start with legal news, including the DOJ's decision to charge the Southern Poverty Law Center

for get this efforts to take down the Ku Klux Klan. Not a joke, just a fact. We will also cover the latest and greatest from both America's liquor cabinet, this time focusing on FBI Director Cash Patel and America's Thirsty A Circuit. Yep, the Fifth Circuit is back on its bullshit by which I mean bringing down the separation of church and state. We'll briefly recap the cases the Supreme Court heard last week, say a quick word about the two opinions of court released.

We may also briefly walk through some of the cases the court will hear this week.

So, as Liz said, we have a lot to cover, but also is that the first time you've said

“liquor cabinet? I don't remember hearing it, and I love it. I just wanted to flag that, I support”

fully. Okay, so as Liam mentioned, a lot to cover and not, we're not going to have time to fully recap all the arguments the court heard last week, but we are definitely in numbers of highlights, including a pretty epic Lisa Blatt, Elizabeth Pre-Logger face-off about the Rucker Feldman doctrine, which is basically a Lea Lippman bat signal/feaver dream. And at the end of today's show, we're going to bring you a conversation with my Penn colleague, Sean Oseo Wusu about his fantastic

new book Law on Trials. So stay tuned for that. I'm hoping that the combination of those two things, the Rucker Feldman, Basop, and Sean's book will raise my energy levels because before we started recording, I was telling Michael, I've been listening to Noa Kahn's album all morning and it's very sad girl spring music, and so I'm worried it kind of depressed the affect, but maybe those two will bring it back up. We'll see. I'm actually recording on Friday and I'm going to see Florence

the Machine at Barclays and Downtown Brooklyn tonight with my 14-year-old, and so I'm kind of had a very different energy in my career as all morning, so I'm going to try to like send some of that through Al Gore's Internet to your ears, Leo. Great, love it. As we noted, we will start with the legal news. And we have some news on Terrace, where the refund system is up and running after

the administration's loss in the Terrace case at the Supreme Court. And Donald Trump is as always

just posting through it. He started off with a rant about the quote "democrat justices who stick together like glue and never wander from the warped and perverse policies ideas in cases put before them." He must have missed Justice Kagan and so to my ears, concurrence and child versus Salazar, the conversion therapy band case, but I guess he's not really concurrence as that closely Leo. No. So, you know, he launched this broad side again, the Democrat

justices sort of on mass, but of course reserve special insult for the only black woman

"low IQ person who has just to state the obvious, managed to reason circles and laps around

“his nominees, his liquor cabinet and everyone else, but whatever." He then, that is Trump in his”

posting through it, shifted to bitching both about the quote "completely ridiculous terror decision,"

which resulted, he says, in a $159 billion pile of cash refunds to people who've been ripping

off our country for years, you know, note that the reasons go to American companies and you would think Trump, if you really thought it through, would love something that steals from American consumers and gives back to companies and corporations, but I'm not sure he's actually tracking all of it." No. He also has some IR reserved for the quote "nasty one-sided questions on the country destroying subject of birthright citizenship apparently hasn't gotten over

that and the post closed with how, quote, "the radical left Democrats don't need to pack the court since it's already packed," which if you pause to think about it, is true that it's already packed

“just not in the way he's suggesting. It's like a kernel of an incident. So close.”

Okay, so that was last week, but now we need to turn to something that we previewed up top,

which is that last week, we learn that the administration is bringing charges against the southern poverty law center. So DOJ announced late in the week that it had secured an indictment against the SPLC, which is a non-profit civil rights organization founded in the 1970s. SPLC is based in Alabama and is probably best known for monitoring and tracking and litigating against white supremacist organizations. Indeed, their mission is focused on dismantling

white supremacy and advancing human rights. So, obviously, that raises a red flag. Right, yeah. White flag or the administration. Right, so you think about it like this is of course the group that DOJ targets in exactly the way that it has. And we should say that this organization is far

“from perfect. It's founder resigned amidst allegations of misconduct. There have been reports”

about toxic workplace culture, but none of that is what DOJ is concerned with. The indictment that they brought arises out of an old SPLC program known as Clan Watch, which as the name suggests was aimed at dismantling the Ku Klux Klan, including through a system of informants. And if that system, which is part of a program that no longer exists, that is the basis for the indictment. The indictment accuses the organization of wire fraud because it says the

organization's donor supposedly won't aware of the program. It's totally unclear how that could be true, even clan groups issued public statements and clan publications about clan watch, which they obviously hated and wanted to take down. The indictment also accuses the center of making full statements to a federally-insured bank when SPLC set up bank accounts with the dummy company to pay its informants. Apparently DOJ might think it's illegal to protect the cover and

identity of informants who were infiltrating and taking down the clan. That is the actual basis of one of the charges conspiracy to commit money laundering, which arises out of their efforts to protect their sources in the field. Even supporters of the indictment actually seemed to recognize that there is no there there, so which they love. I mean, like so fascism, philosopher, and chief, slash, like, bro Curtis Yarvan had this incredibly revealing post on X about the charges.

He says, quote, "What's cool is that I, sorry, I'm losing it." He says, verbatim, "What's cool is that I don't really see a strong legal case that the SPLC shouldn't be able to run these kinds of wacky black ops." That means DOJ is prosecuting the SPLC just because it kind of can. If this would be an unusual sign of finally getting it. So the fact that there is no there there that these are literally trumped up charges is for some a cause for celebration, which is just like

how sick a lot of minds in this timeline are. So Todd Blanche acting attorney general in a press or suggested that SPLC was manufacturing extremism. A gather this suggestion is that the clan wouldn't exist without the SPLC and this network of informants, but regardless of what was said at the podium, the indictment itself completely refutes this claim. It describes how informants stole clan documents and things like that. I mean, I guess maybe we should just end by

saying like in an era of incredible lows for DOJ, this is among the lowest. DOJ was created

in part to help prosecute the clan. DOJ is now prosecuting entities for X. They took to help take down the clan. Yeah, I mean, clan watch as we've said, we started to identify and take down the clan, which of course prompted virulent opposition from you guessed it, the clan, and that is the fight. DOJ is taking up when DOJ of course was partially created and fleshed out to go after

the SPLC indictment, the clan history behind it, and the ignomini of Todd Blanche. Okay, we should

“also mention actually a pretty different piece of news out of DOJ, and that is that at the end”

of the week, we got news that this same DOJ had actually indicted a soldier for using classified information to make bets on the prediction market poly market. This soldier was actually involved according to the indictment in the operation to capture Venezuela president Nicholas Maduro, and then used the information that he got by virtue of being part of that planning to make bets on poly market and enrich himself to the tune of $400,000. So scandalous, but not shocking,

we all had a very strong sense. Lots of administration insiders have been trading on and enriching themselves on inside information of exactly the sort. But what was really striking was that the indictment was brought at all, and it was interesting that it was brought in SDNY here in New York, where as our guest host Ian Basin noted a few weeks back, there are some signs that prosecutors may be seeing the writing on the wall when it comes to main justice and maybe showing a little

“spine and independence. So I think it will be really revealing to see if, or when the White House”

and main justice get involved in potentially even try to override or otherwise interfere with this prosecution. But for the moment, at least, it's just like there is a tiny bit of like real law enforcement still going on inside at least the southern district of New York. Stricks here, and he's brought to you by aura frames. Mother's Day is coming up, and there's nothing like giving mom the gift of great memories, and that's where aura frames comes in.

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“Now we got to talk more about other actions out of this liquor cabinet, and that includes cash”

betel, suing the Atlantic magazine. So listeners, this president's, I'll call it innovative, use of existing legal processes. Together with his creation of his own shadow legal processes, it's actually something that the three of us, Celia and Melissa and I have written about, and a lot of your article that's forthcoming in the Northwestern University Law Review. We will get that draft posted online sometime soon. But for now, we will just sort of tease

some of its contents by noting that the president's underlings seem to be taking a page from his book in responding to reporting that paints them in an unfavorable light by filing lawsuits, seeking just preposterous sums of money. So in this case, FBI director Cash Patel has filed a $250 million lawsuit against the Atlantic for a piece describing drinking and other behavior that would be concerning for any government official, but in particular for someone in charge of

“an agency as large and powerful and national security essential as the FBI.”

Tip it's from the Atlantic reporting include nine people describing an incident when Patel couldn't get into his government email and started a freak out about the fact that the White House may have fired him when really he just messed up his password or something. Notably, his lawsuit makes a different claim about this supposed incident than Patel himself has made from the podium, including last week. So the lawsuit says yes, Patel could not get into

his email, but it was an IT thing, not a bottom moment, whereas on the podium Patel said this,

I was never locked out of my systems. Anybody who says the opposite, you'll also

can answer any one that says the opposite is lying. Thank you. You filed, says that you're right, because men stop. You're being extraordinarily rude. At the end of that clip was yes, Todd Lange calling the press extraordinarily rude,

“and so if you think that's rude, maybe this podcast should come with a trigger warning.”

Like today, and in general, right? So the Atlantic article just in case you missed it, also describes what it sort of delicately refers to as conspicuous inebriation, including at a Vegas establishment, less delicately titled the Poodle Club, also describes a request by Patel's security detail for breaching equipment. I gather so they could break down doors if needed to get him up, since they had had so much trouble doing that, because he was so fast asleep

after nights at places like the Poodle Club. Anyway, really article, if you haven't, if it is as well sourced as it sounds like it is, Patel's type of lead-in lawsuit, the complaint has like a bunch of embarrassing errors, that suit will get tossed, but the point of this kind of litigation and this is something that we talk about in the article

is to scare the press off of critical reporting of just the sword, and we cannot let it work.

And in a related vein, the time says now reported that the FBI supposedly investigated a New York Times reporter after she wrote an article describing how the federal government was using government resources to shepherd around Patel's girlfriend. Next up in news, there was a lot going on on the orders list from the Supreme Court that they issued last Monday. So there was a huge grant of surgery, and yet another case involving religious objections to

LGBT equality. This case won't be heard until next term, but we wanted to put it on your radar. The case, Saint Mary Catholic, parish, versus Roy, involves Colorado's universal preschool program under which the state of Colorado offers free preschool to all people under four. The program includes public and private providers, including faith-based providers, but all providers have to give children an equal opportunity to enroll regardless of the

children or families with religious affiliation, race, sexual orientation, gender identity, housing status and other traits. And because this is a year starting in 20, and because Colorado is once again trying to do non-discrimination law to ensure equality and dignity within its borders,

there are some objections. Always with the objections, this time from the petitioner,

who's a Catholic preschool that wants to keep receiving public funds while also turning away kids, based on their parents gender identity or sexual orientation. The school lost below, and their petition, which the court has now granted, and as Leah mentioned, will be heard next term, makes all kinds of claims about the many other exemptions that Colorado provides. The Colorado brief says that's just not accurate, and this kind of heated dispute at the

sort of search stage about the basic facts of the case really calls to mind a number of other recent cases on related topics, where the facts were also really contested in ways that is just, they just haven't historically been when it comes to cases that make it to the Supreme Court. So I'm thinking in particular about the wedding website, designer or would be designer in 303 creative, and also the preying coach and Kennedy versus Bremerton. So the question of what

search, and it also granted the second question about whether the program violated the first amendment,

but it did not grant a third question about whether employment division versus Smith should be overruled. That's the case it says you can't get an exception from a neutral and generally applicable law just because you have religious objections to or are burdened by the law. So for now Smith may live, at least in name, to fight another day, maybe because it was written by the great man himself, yes, Antonin Scalia, a fact that does seem to influence the court

to this day. That orders list also contained an odd percureum order in a case DC versus RW, where the Supreme Court appeared to just disagree with a DC court's resolution of a fourth amendment reasonableness question. The percureum order walks through the reasons that DC

Court of Appeals gave for concluding that a stop was not reasonable, and basically just decides

we disagree that court was mistaken. This really felt like what the clerk's use to call a nice aspect of still call an instance of fact-bound error correction, which is usually a way of saying a case is not a good candidate for a grant of surgery, but here for reasons the court felt differently. Justice Jackson, Solo Descent, said quote, "If the court's decision to intervene reflects disapproval of the DCCA's assessment of which particular facts to weigh into what extent,

I cannot fathom why that kind of fact-bound determination warranted correction by this court. And quote, "Girl, same, Justice Surth Mayore also would have denied the petition but did not join Justice Jackson." Okay, let's move on to some news from the lower courts. First up, any guesses as to which federal appeals court says 10 commandments displays in classrooms are A, okay. Let me think. The DC circuit. The fifth. Of course, it was the fifth.

Eighth would have accepted it as an alternative correct answer, but it would have been

“plausible, but no fifth. It is. And if that's what you guessed, listeners work like you're paying”

attention. So, the fifth circuit by a nine to eight vote, so that's an on-bank fifth circuit, upheld a Texas law that requires Texas classrooms to display the 10 commandments in conspicuous locations with large typeface in each classroom. The opinion by Stanford Storm Trooper,

Stuart Kyle Duncan basically says the establishment clause only forbids actual state religions.

And it also says that everyone knows the free exercise clause, like the other religion clause of the First Amendment, forbids, quote, "opressive curriculum," like story books, celebrating diversity and inclusiveness, but not massive scripture on display in all classrooms at all times. Yeah. I mean, the TLDR is that story books with LGBT characters or themes are mean, like really mean, but reciting sections of the Bible is just reciting the good word.

There isn't even any effort to make any kind of principle distinction between the two as far as I can tell. Judge Ho, concurse to say, our founders didn't just permit religion in education.

“They presumed that there would be religion in education, and this case is, I think,”

pretty clearly headed straight to scotists. I've got some additional things to say about this opinion, just to underscore how ludicrous it is. I mean, this is out there even for the fifth circuit. Yeah. So, the fifth circuit did something kind of wild with how history and tradition works in the second amendment in ways that just seem totally gerrymandered to reach the courts preferred outcomes. So, in the second amendment, the Supreme Court has said that in order to uphold a law,

the government has to show that a modern-day firearm regulation is similar to a historical firearm regulation. Here, the fifth circuit says that in order to strike down a law, plaintiffs who are challenging a law have to show the law is similar to a prior law that was treated as unconstitutional so it puts the burden in a different place because gun control bad in religion and public office good,

“just no effort to explain how these things all make sense. It also, I think, adopts a pretty”

different take on religious motives from what the Supreme Court has done in the religious exemption cases. So, the fifth circuit seems to rest on something like a claim that when the government mandates posting scripture, who is to say whether the government's motives might be religious, and in any case, either their motives even matter. But when individuals seek exemptions from civil rights laws, like those individuals say I don't want to comply with non-discrimination

protections, protecting the LGBT community because it's opposed to my religious views. Those individuals can just declare their conduct to be religious in nature and that motive has constitutional significance and transforms their actions into religious practices. The opinion is bull of wild quotes. This one, just to give you a flavor,

question to be decided by a court not a fact question to be decided by experts no matter how

“credentialed, to be sure a court's must make a determined effort to grasp the relevant history.”

They do so by consulting articles, books, and historical sources and bring their own independent judgment to bear on them, not by appointing an expert whose findings might be insulated by

review on appeal. Basically, they are just saying judges' hot takes, those are the law, not actual

history, no history just vibes. It's totally different topic, but I'm not also just feels like the major questions doctrine to me which is literally a founding credo of this podcast, no law just vibes. Here they are now just copying to it, where for a while they were making it a little bit hard to pin them down, you had to pull threads together no longer. They're just owning it. Okay, so that's from the opinion itself, but Leah, you have some theories that I feel

like let's share with our listeners, so put on your tinfoil hats and hear me out. Okay, so this

“Texas 10 Commandments case was consolidated with another case challenging a similar Louisiana law,”

and the cases were argued together back in January. You can hear the oral argument announcement

for both of the cases, which were, again, were consolidated here. This afternoon, we have two cases of consolidated purposes of the four of argument only, case number two thousand twenty four three zero seven zero six, Darcy wrote at all versus, versus Kate Rumbly at all, and case number twenty five five oh six nine five, Mara Nathan at all, versus the Alabama Heights independent school district at all. Now the Louisiana case was released in February,

and that case was decided on different grounds, right in this ground. So the court said it couldn't actually resolve whether the law was constitutional at this point in the litigation

because it wasn't clear how the law would be applied. That case also decided by an on-banc

court i.e. full court was actually decided by a different group of judges, so in addition to the active judges on the fifth circuit, the on-banc court in the Louisiana case included a senior judge judge Dennis, who had participated in the panel decision on that Louisiana case, and he descended from the fifth circus decision dismissing the challenge to the Louisiana law. Now with Judge Dennis on the court, it was an 18 judge court. The Texas case, as you noted, up top, that was

just released, it was released after Judge Dennis took in active status. It was therefore decided by 17 judges and it split nine to eight. So had Judge Dennis participated, it could have been an affirmant by an equally divided court, which has the effect of leaving in place, the panel opinion, the three judge decisions striking down the Texas law. Now, it's not clear, Judge Dennis would have, could have, or should have participated in the Texas case, had he still been senior

rather than being inactive. He was, after all, on the panel in the Louisiana case, not the Texas one. And by convention, senior judges participate in on-banc full court proceedings when they were on the panel, but not otherwise. On the other hand, these cases had been consolidated for oral argument. Now, it's possible this distinction between being consolidated for purposes of oral argument versus the decision is what the chief judge was alluding to when she announced in the

announcement of the cases that they were consolidated only for purposes of argument. But still,

“you know, I have to wonder, did they delay releasing this case until he took inactive status?”

So I had tracked none of this. It seems very plausible to me. And honestly, this kind of analysis is why people structure their Mondays around new episodes. So that very much seems plausible to me. All right. Another piece of very different state court news, since we got a lot of bad news in already, we did get a sort of glimmer of good news out of Pennsylvania last week, where the state's commonwealth court ruled that a ban on public funding for abortion violated the state

constitutions equal rights amendment. Terrific opinion, it could still go to the state's Supreme Court, but huge and really important ruling in a lawsuit that's been ongoing for quite some time. So congrats to everybody who worked very, very hard on that case. In other happy news, happy, but potentially for the court. But court wanted to cover, right? But courts developments in redistricting in Virginia. So the voters of Virginia approved a redistricting plan that would

gerrymander the state's congressional districts in ways that advantage the Democratic Party and create more seats advantageous for the Democratic Party in order to counterbalance the partisan gerrymandering war launched by Texas and the president to retain control of the House in the Republican Party's hands. Republicans are, of course, apoplectic about Virginia insisting that

And yes, that was AOC responding to Republican complaints about this gerrymander and Democratic

gerrymanders in general. And while this, the Virginia referendum was a response to the Texas gerrymander,

“it is really important to note the way these new maps have come about. So in California and Virginia,”

voters were the ones asked to decide about whether to implement new maps. By contrast, it was the already gerrymander Texas state legislature that rammed through very gerrymander. So even if you're interested in posturing about the undemocratic quality of these gerrymanders, you cannot be taken seriously if you don't at least acknowledge that it was a democratic process in the two states that resulted in these democratic, advantageing maps. Now the Democratic process, if Republicans

lose, Kate. Thank you for their reminder. I keep forgetting and, you know, that's on me.

So as, you know, Kate and I said, but courts and after this Virginia referendum passed, of course, a Republican appointed judge reported to invalidate the voter passed gerrymander in Virginia and throughout all the votes. Now the states attorney general is appealing that ruling and

“indeed the Virginia Supreme Court will hear oral argument in this case about whether to throw out”

the referendum today. The day this episode comes out. All right. Final piece of news before we get to scotus recaps. We have more liquor cabinet, more liquor cabinet news. That's the phrase. That, okay, sorry, you're right. Another piece of news, another bottle of pulled off the shelf of the liquor cabinet, which is that another cabinet secretary to really makes metaphors bit the dust last week. So yes, labor secretary, Lori Chavez, Dremmer, resigned amidst the ethics scandals and investigations that we

talked about last week, kind of swirling around her. I have zero sympathy for her, but I have to say, I don't love that of all of the awful people in this liquor cabinet. It is so far only the awful women actually being given the boot. So, you know, I guess justice for the remaining bottles on the shelf. Now do them. Yes. Strixdutney's brought to you by one skin. Listeners, you've probably heard us talk about one skin before

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“few two of them were in three-patch versus SEC and FCC versus AT&T. Both are about the respective”

agencies authority to seek particular remedies. So three-patch versus SEC is about whether the SEC, the Securities and Exchange Commission can seek what's called discouragement, i.e. Return of a company's profits without showing that a company's investors suffered economic harm. And the FCC versus AT&T case is about whether the FCC can within the agency make some sort of determination

that a company is in violation of federal law and ways that would warrant civil penalties or

whether instead it has to do that in a federal court and with the jury. In the three-patch case concerning the SEC, the justice has seemed interested in whether discouragement was still an equitable remedy under the statute and whether these limits that the petitioner's repatch was seeking on discouragement would make discouragement duplicative with compensatory damages as a remedy. Based on the argument it sounded to me like the Democratic appointees probably also just

assist Thomas and Barrett were skeptical of the no discouragement argument. The federal government received substantially fewer questions. And my guess is the court will say the SEC can seek discouragement without showing economic harm to investors. And then FCC versus AT&T is the case about the FCC's ability to conduct an adjudication within the agency, about whether a company is in violation of the law and ways that would carry fines or penalties. The government is asking

the court to construe the statute to mean that FCC determinations about liability don't obligate the party found to be in violation of the law to actually pay the amount of the fines. Instead the FCC says the liability finding isn't final until it is enforced in federal court, you know, either by the federal government seeking to enforce it or when a company fails a declaratory judgment that the liability finding doesn't carry a fine at there to the court can provide

a Lenovo review. AT&T says this would still put companies in a difficult position, kind of like an unconstitutional condition on the right to a jury trial by asking them to forego a pilot review of the order in favor of district court litigation. There is some dispute about the extent of deference courts owe the agency determinations, perhaps about the facts, and then also whether any delay between the agency adjudication and a federal court case might harm the company somehow.

Here and this might be a theme of last week. It seems like the federal government, I mean, doesn't seem like they definitely change their position throughout the litigation from saying that the company had to pay now to saying the company didn't have to pay until there was an enforcement order proceeding in federal court. So there's some question about whether or how that will affect the resolution of this case and a question about what that might mean about the seventh

amendment in future cases, it's just kind of a mess. And now my energy booster, TM versus

“University of Maryland Medical Systems Corporation, the Rooker Falcon case. I mean, if you have to”

suffer through an on-bank Texas 10 Commandments case, like what you get on the same week. I listen to it the same day as I read that fifth circuit opinion and the same day my poor doggy had to have dental surgery. Oh, she's still out of it. I feel so bad for her. But anyways, I was listening to this. This is what you needed. Power through. Yeah. Okay. So this is a super fascinating case and it was a super fascinating argument about a doctor and known as Rooker Feldman. That is the doctor

and that says federal courts do not have what's called a pellet jurisdiction, the jurisdiction to review on appeal, certain state court judgments such that the federal courts have to dismiss any effort to bring a case to them that invites a pellet review of a state court decision.

And the last Rooker Feldman decision, the Supreme Court had attempted to curb how lower federal

“courts were relying on the doctor. So in a lot of ways this case pits the Supreme Court's”

antipathy for Rooker Feldman and the desire to limit federal courts invocation of Rooker Feldman against what seems like a somewhat arbitrary limitation on the doctor. So the petitioner in this case is arguing that Rooker Feldman applies only where the state court decision that a party is seeking review of is the decision from the state's highest court. And that the doctor doesn't prohibit federal courts from entertaining collateral attacks to state court decisions from state

trial or intermediate appellate courts. You know, that's a clear enough line but the question is like

why would that be the line? Why allow federal court review of intermediate state court decisions

or state trial court decisions, but not state Supreme Court decisions? Now there are potential answers to that question, but it did seem like that was really what some of the justices were struggling with. Yeah. And sort of even if Rooker Feldman doesn't require federal courts to dismiss collateral attacks on state court judgments. There are other doctrines that might prohibit federal courts from reaching the merits like abstention doctrines that require federal courts

to pause their proceedings for ongoing state proceedings or claim preclusion, which doesn't allow parties to like endlessly litigate issues or claims resolved by prior judgments. This sort of range of other tools is something that Elizabeth Pre-Logger, who is back before the court, and it was

“glorious. I didn't honestly realize how much I've missed her until she was found, but that's”

something that she repeatedly emphasized. And, you know, in part because, as Leah was just describing the case, kind of asked the court to adopt a limitation on Rooker Feldman and maybe like a counter intuitive one, there were questions about whether the court should just do the damn thing and overrule Rooker rather than trying to jerry-mander like a somewhat puzzling limitation on it. And when asked whether just the question in the case encompassed whether the court should overrule

Rooker, Pre-Logger said basically, I mean, you did it in Dobbs and Citizens United, which like, it's hard to argue with. Yeah, I know. You sort of felt a tiny bit of the Dobbs

pain. Like it's just that she's so poised always, but she did live through that and you heard

a tiny bit of it, I think, in our answer. Yeah, it turned out guys, you can't actually overrule it.

“Right. It was a way of just kind of like, I don't know, I felt shame. I felt shame on the”

of the court. I felt shame on behalf of the country, just like having to kind of invoke that case, just what? But this is our timeline. So when asked about whether the court could should overrule Rooker in this case, the advocate on the other side, Lisa Blatt, had this to say. So you don't even have any state in front of you here. So no, you're not going to overrule Rooker. I mean, I'm sorry. I don't think you're going to do that.

Not in April case. Not in anything. Don't, don't dare my colleagues. Okay. I'm sorry. I'm sorry. A little too much. I'm on my ears. You know, Lisa's going to Lisa. And even for her, that was pretty epic. I know. What was the little too much? Like, my answer me, like, exactly. Exactly. I was so curious what she meant. I know. For instance, with a little bit. I know. There was a weird moment in the audio during the

argument, which again, I was listening to as a coping mechanism. And so I noticed that I wanted to play here for our listeners. That are one more question. As I read the question presented here, it does not enable us to look at overruling Rooker. There's an audible side. As I read, and I just want to know who the side came from, because, you know, just as Jackson was speaking, she sits by Justice Kavanaugh, but it didn't sound like Justice Kavanaugh.

Amazingly funny breathing, right? Exactly. So maybe it was Justice Thomas. And for whatever reason, I also wanted to invite listeners to compare that side with the sounds of a member of the liquor cabinet, you know, Secretary Bear Carcus Whale, Juice Racoon penis, breathing during his Senate testimony. So we'll play that clip here. I've done among the many that you described in your testimony. In that context, in your testimony, you identified nutrition as a bedrock of health.

And one of the primary levers for treating and preventing chronic disease. And I'm just sorry, I did that to your earholes listeners, but I mean, I guess I'm glad nobody did that while Justice Jackson was talking. Right. Small, small, small, small sex. Like this. So let's briefly

entry case, Blanche versus LOW, which is about weather and under what circumstances, immigration

“officers can parole lawful permanent residents into the country rather than just admitting them.”

Lawful permanent residents or green card holders are people who have already cleared the most demanding standards in immigration law safe for becoming a citizen. And federal law says the green card holders can only be excluded if one of six circumstances is true. That includes if they committed certain crimes. So the question here is when and how the determination that they've committed those crimes gets made. So the federal government, it turns out here too,

has just set up a bunch of things in this case and might be still saying a bunch of different

things, but they seem to be taking the position that officers at the border can basically say

I'm not sure that this LPR has established that they can't be excluded. So I'm perrolling them rather than admitting them. And then whether they are, in fact, excluded or in admissible, will be determined at some point later by an immigration judge in more formal proceedings.

“But in the interim, they will have this on certain legal status where maybe they can't work and”

they don't have their green card, which the government is apparently taking away from them when it makes this parole decision. Mr. LOW, by contrast, says no, if an immigration officer at the border will not admit an LPR, the officer needs to establish by clearing the incident evidence that one of the exceptions to admission applies. Mr. LOW argued that it doesn't make sense to

structure a subsequent immigration proceeding around whether the initial immigration officer

had clearing convincing evidence that the legal permanent resident was excluded, but based on evidence that might have a recent sense that determination was made, but asking about it at the time of the determination. So having listened to this, you know, I thought that the federal government got more questions than did the lawyer for the respondent, which is encouraging. And the response lawyer did a good job suggesting that the federal government's position in this case has

been all over the map, vacillating between this case being about when the germination gets made to what standard governs the germination such that maybe the Supreme Court should dig, you know, dismiss the case as improperly granted and not decide it. Maybe wonder if the president's approach to Iran is infiltrating the DOJ's approach to all of its cases, just totally all over the map

“and conflicting things? I think that's an accurate characterization of this administration,”

writ large, so yeah, that tracks. Okay, but back to the argument, the federal government kind of ominously suggested among the sort of many arguments that it was making that Lee was just mentioning, and Barrett actually kind of picked up on this idea that if the federal government can't parole lawful permanent residents into this country, then maybe they could just attain them and begin removal proceedings. Fortunately, the Democratic appointees were all over this case coming at

it just from a bunch of different angles, KBJ focused on the real burdens imposed on LPRs, who are enrolled, Kagan on the kind of conceptual oddity of saying this later determination is about whether the determination made sense at an earlier point in time, but based on subsequent evidence, I mean, so to my or was really locked in on where the government got this authority to put lawful permanent residents in a liminal state? And just as such, on my or is Barrett's

question, the government's lawyer, generated what was for me, maybe one of the most cringe were the exchanges, which is saying a lot given how much rightwinger is blatantly disrespect, justices so to my or and Jackson in particular, you know, no points for wondering why that might be, so just praise yourselves for this exchange. I'm not at the moment he made the decision, at the moment he made the decision, the board-- Did he have enough proof? The boarder office,

did he have enough proof? At that moment, forget him for him. Yes, the boarder officer had enough proof for himself to do what? Parole him or to exclude him. I'm not sure what you mean by exclude, but I thought. He could have just said you're not admissible by yes, but then that would allow him. And that would require initiating removal proceedings, and as I said earlier, and so at that moment, if there was an IJ there, sitting there, he could not have one that removal correct? Probably not.

Oh, because we have a clear answer. So, birds, maybe if you would you like to finish that answer. Thank you. It just wanted to crawl under my desk and there was one other moment that I'm not going to play a clip of, but reminded me of your colleague Sean's book that we talk about later in the episode, and that was one just as Jackson asked the lawyer for the federal government about the risk that the government might exercise this option to parole, lawful permanent residents,

even if the officer might not think the lawful permanent resident is actually

excludable or inadmissible, and that they parole basically to make the life of the LPR

difficult, and see whether they would self deport. To which the lawyer for the federal government said, almost with some irritation that the question had even been asked, we don't and can't and shouldn't presume bad fate of the entire executive branch, which okay, like sounds fine enough in the abstract,

detained in the administration's mass censorship and terror campaign directed at the people who

criticize the United States and Israel's actions in Gaza, and she chose to self deport because of what she described as vicious harassment, targeting her and abuse, and she had asthma attacks in detention and whatnot. And can I just say this is a point that you've made before,

“Leon, I think it's really wise, often the like the meanest and most disrespectful thing you can”

do is just kind of accurately and dispassionally describe the conduct of this administration, and the sort of umbridge taken at this kind of suggestion, I think, sort of called to mind for me that observation. Yeah, and really like what a week to talk about Sean's fabulous book, law and trial, which is about as we'll get to how the legal profession summons inequality in

hierarchy, because also this past week we got news that the Tennessee Attorney General effectively

blocked the upcoming trial in the case that was brought by women who were harmed by the state's abortion ban and who were set to testify about the ways in which the abortion ban harmed them. This case was similar to the one out of Texas where women did testify and some became physically ill, you know, describing what the abortion ban's had put them through. This was also a week in which there was just a remarkable efforts to sane wash the shadow docket actions that had been

described by the New York Times last weekend, you know, the Supreme Court's actions in the clean power plan case, with just like legalisms and what aboutisms that really like when you kind of boil down and drill down, like they just undersell or obviscate what a big deal. It was like

sure, maybe there's some like formalistic distinction like here there or that, but like come on,

“get real. It just felt there was such an effort, I think, to both kind of minimize the reporting”

excuse the conduct on display. And I mean, I think that we'll say this probably in our favorite things, but just God bless, Steve Flatic for sort of singlehandedly being out there kind of like, I will talk more about that. Responding to all of those efforts. Okay. Let us now turn to the arguments of the court will hear this coming week. And there are some big arguments. I think we're just going to mostly cover a pair of cases the court will hear on Wednesday, which is the last day of

the court's regular session for this term. And that's a pair of cases, Mollin versus Doe, and Trump versus Peot on about TPS or temporary protected status. TPS, as we have discussed before, is an executive branch designation that entails a determination that conditions in a particular country are so dangerous, think more or natural disaster that it is unsafe for individuals to be sent there. TPS gives individuals from affected countries protection from deportation and the ability

“to work and travel while they are here, but it is not in itself a pathway to permanent status.”

Both Haiti and Syria, as well as a number of other countries, are under a TPS designation. So back in September, speaking of, you know, Flickr Cabinet, then DHS Secretary Nome announced that the administration was ending the TPS designation for Syria, and then in December, she made the same announcement for Haiti. The TPS recipients filed suit challenging those decisions to end TPS. As to the Haiti decision, Judge Ana Reyes in the District of Columbia, the District Court in DC,

found the administration action was likely unlawful, both because the decision appeared predicated on hostility to non-white immigrants, and because it did not satisfy the reason decision-making requirement of the Administrative Procedure Act or APA. The opinion quotes at length from some truly vile statements by administration officials, including referring to immigrants as killers, leeches, or entitlement junkies. The opinion also notes quite pointedly that the plaintiffs

in the case include a neuroscientist researching Alzheimer's disease, a software engineer, about a national bank, and other individuals just far more accomplished sort of to the person than anyone in Trump's Ligger Cabinet. Group of plaintiffs also challenged the Syria TPS cancellation in that case, the government produced the administrative record, and it contains a one sentence email consultation between DHS and the State Department regarding country conditions in Syria.

Really sounds an email, not a signal chat. He's again, I guess again, sort of more kind of small blessings. But the lower court in that case, you know, in part because of the thinness of the consultation, preliminarily block the cancellation, which it determined would a rapidly harm the plaintiffs, like the plaintiffs in the Haiti case, highly qualified doctors, journalist, students, teachers, researchers, business owners, caretakers, and others who have been thoroughly vetted

as part of this TPS process and who would be in real danger of being killed if forced to return to Syria. These cases are emergency applications. That is how the kind of posture arose, and the Supreme Court granted what's called cert before judgment, hearing the case before a judgment in the court of appeals, and set the cases for oral argument. So all that is before the court technically is whether the lower courts, preliminary grants of relief, should be stayed.

There isn't even a written lower court opinion in the Syria case. The federal government argues both that the Secretary has unreviewable discretion to make these determinations and that the

earlier orders staying lower court rulings in cases involving the termination of the Venezuelan TPS designation, control here, or at least that the lower courts were wrong and not putting more stock in their non-existent reasoning. A couple of things to note about posture and just these cases. First, the federal government's position that courts lack jurisdiction to review

these determinations would render these TPS decisions, which affect more than a million people

unreviewable. It would make the temporary protected status statute, which contains specific criteria. The government is supposed to find satisfied, effectively advisory, and it would allow what advocates say would be the largest D documentation in modern United States history. Now, maybe there is a potentially good sign in that the Supreme Court did not just grant the stays, the federal government asked for, as it had in the case of Venezuela's TPS cancellation,

“and in New York Times column, I think last week or maybe the week before, Linda Greenhouse”

read that move as a strong signal that the Supreme Court plans to rule against the administration in these cases. I am less sure, I think it could be attributable to the persistent criticism of folks like our friend Steve Vladik, who have kept the spotlight and the pressure on the justices and kind of shame them into not consigning hundreds of thousands of individuals living and working attributing here to an uncertain fate via unreasonable orders, but that doesn't mean they won't

ultimately get to that conclusion. Yeah, I very much hope Linda is right, and she is not just a

story-eyed optimist, and so I do put a lot of stock in that, but I just don't have the kind of confidence in that prediction that was on display in our column. But I do think that the administration's conduct was outrageous. If the court takes at all seriously its decisions in the census citizenship case, and the Docker resision case, which ruled against the first Trump administration's completely unresolved and pretextual moves in other domains, these cases should be no brainers. But that

was a different court, and I'm just less confident that the court is going to kind of extend the reasoning of those cases, which is, well, Linda thinks should happen, and that's right,

“it should, but I don't know that it will, but anyway, it's going to be an important argument to watch,”

and the court will also hear arguments in an important preemption case involving the pesticide round-up in a patent case, in a case about the Torture Victim Protection Act in Alien Tort Statute,

and then finally, in an important fourth amendment case, Chattree versus the United States about

what are called Geofence warns, and if that is not a term that you were familiar with, same, agather it's a relatively novel kind of warrant, and it raises questions under the fourth amendment, so fourth amendment stands, that will be an interesting argument, and we will bring you a recap after the case is argued next week. So we will briefly cover the opinions that the Supreme Court issued last week. First up is Hensley versus Floor Corporation. This was the Tort's case

that was brought by people who were injured by a suicide bomber attack at a U.S. base in Afghanistan. It was perpetrated by someone who was hired by the military contractor floor corporation, and the question in the case was whether injured individuals or their states can sue the military contractor who hired the individual, or whether the state law tort suit is foreclosed by some federal law, maybe a federal statute, maybe the Constitution, maybe the federal law that shall not

speak its name, that would be federal common law, federal common law refers to the body of federal law that is fashioned and made by judges, it doesn't derive from statutes or the Constitution. So there's a famous Scalia opinion, boil versus united technologies, that said that federal common law barred a state tort suit filed against a military contractor that alleged the military contractors designed if an item was defective, even though the design accorded with the terms

of the federal contract. Now federal common law is not super popular among the legal formalist or public and appointee crowds, but twist the great man himself wrote the opinion in Boyle, which creates some cross-pressure. And this tension might have produced the opinion that we got in Hensley, which was author by Thomas, joined by Gorsuch and Barrett, relies on Boyle to say the state tort suit isn't barred, but the Thomas opinion doesn't actually utter the phrase federal

common law, as if they want to basically say, we're relying on Justice Scalia, but not on federal common law. Another way to think of it is just literally the man himself is the brooding omnipresence

“in the sky. That's what great men do. So the descent in this case was somewhat surprisingly”

authored by Justice Alito and joined by the Chief Justice and Justice Kavanaugh. I was a little shocked that Justice Kavanaugh didn't write something. This was the case in which he basically had a melty at the oral argument and was told by Justice Gorsuch no less to take a chill pill and, you know, take it down from like an 11 to a two. And I did want to flag a line from the descent by Alito.

litigation, including state criminal litigation against federal officers. So Justice Alito decides a previous Supreme Court case involving the prosecution of a federal marshal and says the case stands for the proposition that, quote, states cannot prosecute federal agents for their official acts and, quote, that is a remarkably broad and unnecessary reading of that decision,

“but perhaps an important sign about where at least three justices are on some matters that might”

make their way to that. Yeah, definitely concerning. And finally, an end bridge versus nestle, we got a unanimous opinion in a case involving a statute that says that parties who are sued in federal court have 30 days to try to remove that is like to move the litigation from state to federal court and hear a party sued by the state of Michigan waited a lot longer than 30 days to try to remove it with something like over two years. But then argued that the statute that sets

forth the 30 day requirement was subject to equitable tolling, meaning that the court has discretion to pause or extend or that 30 day period or, you know, forgive a delay. And they're the court. As I said in the nine zero opinion, authored by just a so-to-my-or, rejected that argument and held the case was removed way too late and thus had to stay in Michigan State Court. So before we get to our interview with Kate's colleague Sean about his book, law on trial, some housekeeping. So

“we are very excited to announce something big to our beloved members of the Crooked Media”

Extended Universe. So last year, the first ever Crooked Con blew our expectations out of the

water. It was super fun. It was just amazing energizing event. And this year, we will be coming

out of the midterms and heading into a presidential election where the stakes will be total. So we realized there has to be a bigger Crooked Con. So join us for that bigger and yes, we're saying it even better. Crooked Con, this November 5th to 7th in Washington, DC. We're talking bigger stages, more panels, more ways to plug in where you're needed most and more opportunities to connect with people who believe a better America is worth fighting for. In the days following the midterm

elections, we're going to have a lot to learn and even more to do to prepare us for the two years ahead. And we will need all hands on deck. So head to CrookedCon.com and sign up for all the updates to come like ticket release dates, line up announcements, and more. We're going to be there and so should you. Okay. So that is going to be in November. And we were all super excited about that. But you

“don't have to wait until November if you want to see us live because you can catch strict scrutiny”

live at the historic Grammarcy Theatre on June 20th as part of the bad decisions tour. We will be there. We'll have some great guests. There is going to be a lot of legal news to cover because

in late June, there always is. We'd love to see you in person. tickets are on sale now. So grab them

at Crooked.com/events. And now stay tuned for our conversation with my wonderful colleague, Sean Ocewusu about his terrific new book, Law on Trial. This episode of "Stirks Beauty" is brought to you by Aloy Health. Let's be honest, aging can come with some unwelcome changes. Sleep disruptions, hot flashes, brain fog, wheat gain, and decreased libido can hit you hard. Metapause is inevitable, but it's also

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Aloy. We are delighted to be joined for this segment by my Penla colleague, Sean Ose Ousou. Sean is the Presidential Professor of Law at Penn. He holds a JD and a PhD from Berkeley, and he's the author of the brilliant and important new book, Law on trial, an unlikely insider reckons with our legal system. Sean, welcome to strict scrutiny. Great, thanks for having me, Kate. Thanks for having me, Leah, and thanks for the kind words. Super excited about the conversation,

which I think will really resonate with a lot of our listeners, particularly those in law school, about to start law school, maybe a recent graduates of law school. So, you begin by addressing one of the legal professions most foundational principles equal justice under law. And you suggest that it, quote, "belongs to America's collection of beautiful fictions nestled somewhere between Huckleberry

“Finn, the tooth fairy, and trickle-down economics," and quote, "maybe that's why it's above”

the Supreme Court right there in the business of fiction, anyways." So, how would you describe the book's central argument to our listeners? And how does it complicate aspirational ideals

like equal justice under law? Yeah, so I would say the key point that I want readers to

take away from the book is that law schools and Dow students were what I call a tragically necessary skill, and that's their ability to take pretty messy human problems and situations and transform them into legal questions. And I think part of the tragedy there is the necessity. I see it as akin to a doctor, you know, when a patient comes to a doctor and in pain saying, you know, my chest hurts, I'm having trouble breathing. The doctor can't sit there and say, "Wow,

that's crazy." Yeah, the job is to translate that into diagnoses, reimbursable,

“Medicare codes, and I think there's something similar happening with lawyers. That translation is”

important to the work we do translating it into legal questions and to procedural issues. But part of the challenge is that the human consequences of those problems in the moral weight tends to be abstracted in that process. And so it's easy to lose sight of the human consequences of that process. So that's a great kind of broad distillation, and the book goes really deep in very specific ways about lots of aspects of both kind of legal training and education and

the legal profession. And I think it's really a little genre-defying, and that it's this very

powerful blend of like memoir and systemic critique, again, of both law school and the legal profession.

So the introduction kind of provides an overview of your personal background and explains how it informs your view of legal education and the legal system more broadly. And I will just note here that at one point while I was reading the introduction, I handed the book to my husband, who is also from the Bronx. And I literally had to wrestle it back from him because he was so riveted.

“So at some point you need to write a full memoir because there is some memoir here, but it's not a”

full memoir, but in any event. With that teaser, can you just like tell us a little bit about what makes you the unlikely insider of the subtitle and how your background convinced you that you needed to write this book in particular? That was pretty funny. I mean, I mean, I would say a few things, you know, I mean, there are parts of me that many parts of me that have been pretty hesitant to call it a memoir, and I think it's in part because a lot of people

have memoirs, and I'm somewhat of the view that, you know, I'm 41. I think people under the age of 50 should not write memoirs. Well, it's not a memoir, but I don't, yes, yes, but some point you should write about it, but you're in it, you know, in the first person, like in the book, and I think that's really important at which beautifully. Yeah, absolutely right. There's definitely like a first person. It's a first person forward book, and initially it was not that and I got

feedback from some of my friends and colleagues who encouraged me to kind of dive more into what makes my perspective unique. And I would say to answer your question, I think, you know, the reality is I grew up working class, and when you look at the demographics of the legal professoriate,

they tend to come from, you know, the top 10 percent of incomes. And, you know, I think coming from

outside these legal spaces I began to kind of just see things that some people took for granted. So a perfect example is something that Leah's colleague, Maureen Carroll, talks about and some of her own work, and that's the filing fee for federal courts. That's $400. And so for law professors and judges and attorneys, that might be peanuts, you know, but for the average American making minimum wage, that's a week's worth of wages. And so for me, you think about something

like civil procedure, we tend to jump into questions tied to pleading standards and summary

technical detail. Like that can be a barrier. So for me, it's kind of hard to jump into the

“doctrinal analysis without asking, you know, who's able to access the system. And so that's kind of”

one way my background, I would say, shapes what I noticed. And on the flip side, I came to law school with a different toolkit. I pretty much did a PhD before law school. So I was a bit more comfortable pushing back on the way. Things were framed. You know, it was cautious about how I did it in class, because I didn't want to be that guy. But I would find myself thinking individually or in officers. Like, yes, this might be legally accurate, but this might be sociologically wrong and not fully

capturing what's going on. But at the same time, on an insider, I'm an Ivy League law professor. I teach at a fantastic law school. And so, you know, part of the book, I'm kind of wrestling with the fact that, you know, I'm technically part of this club. But I come from a community that law often disregards. So Sean, I don't want to speak for everyone else, but I will suggest that maybe everyone in the universe would have preferred you to be that guy in the reaction

than the guy who actually was that guy in the reaction. Just, you know, a thought. So, you know, you organized a legal profession that you were describing as part of the system into four major institutions or institutional actors that perpetuate inequality and distinct but related ways. There's law schools, there's big law, law firms, there's government attorneys and public interest lawyers. If you had to diagnose one core pathology in each of those four corners, what would be the

“high level diagnosis for each or even like the through line between that?”

Yeah. So, I think I would say for law schools, I think the challenges in much of the first year

curriculum aren't giving sufficient attention to the human problems that bear tight nexus to the subject matter areas they're covering. And so, for example, property is about questions of ownership, but there's little attention to the issue of homelessness. And so, we have 700,000 people who are homeless, that is more than the populations of Atlanta and New Orleans in Miami. So, we're talking about property, but not talking about homelessness, not talking about

civil asset forfeiture. You know, torts is definitely about harm and injury, but we pay little attention to some of the core harms in the torts curriculum like state violence and interpersonal violence. We say that's something that we'll deal with in constitutional torts, fed courts, civil rights

course, or family law. And you see that pattern repeat itself across the first year curriculum.

And the context of government lawaring, I would say part of the tension is, you know, these lawyers are government actors who are acting on behalf of the state, but oftentimes undermining the rights of their citizens. So, I have a chapter about municipal lawyers. So, city law departments that represent cities in civil race cases. And you have the structural tension where their client is the city, you know, they're trying to minimize legal liability and big pay

out for the city, but at the same time, they're undermining Title II, 88 claims, 1983 claims, Fair Housing claims. So, there's this tension around these public servants that are undermining claims brought by their own residents. And the context of big law firms, and I try to make it clear,

“I worked that one. And so, I think, you know, much of the discussion around the executive”

orders, villainizes or valorizes law firms. And I think that's not quite not right. And so, they villainize law firms for making these deals with the Trump administration. Miss understanding the fact that these are businesses that are care about their bottom line. And also, I think they valorize the law firms that pushed back when, in fact, these people were not civil rights activists. They were fighting to protect their bottom line and their access to federal buildings and the

administrators and important national security work. And so, the through line that I would say there is, I think that there's sometimes, because law firms represent deep pocketed corporations, oftentimes, some of that work is innocent and uncontroversial, but sometimes that work runs in deep conflict with public interest. And that's where we see some of the inequalities and

the context of environment, the health, consumer protection, banking. And then finally,

in public interest, part of what I try to do in the book is described the way public interest work has really been straight-jacketed by various kinds of reforms in the 1970s that prohibited the kinds of work that federally funded lawyers could do. And so, you have this situation where they're under-resourced, under-staffed, and unfortunately cut corners in the delivery of legal services in ways that undermine the interests of their clients. There's so many wonderful

each chapter is just so dense with, I think, like, pretty blinding insights about some of the omissions and some of the assumptions that sort of are threaded throughout each of these first-year subjects. And I don't teach contracts, but I just loved this anecdote of you texting a friend who was an undergraduate friend of yours who was already practicing attorney by the time you went to law school, because you had done the PhD first. And you text her quote, "is contract law

a course in advanced oppression techniques?" The F is going on. Because you're just like, you know, we don't talk about predation and power dynamics and, like, language barriers. And I mean, some contracts professors do, but that is not that is just wildly overlooked in so much of

“the way contracts is taught. As a course, and then constitutional law, there's just tons, I think,”

of really insightful material on many of the omissions from the constitutional law, kind of the typical syllabus. And you also sort of note the way that a lot of the kind of structural discussions on constitutional law assume a functional democracy, which is a kind of fatal plot assumption. Anyway, so I offer these by way of illustration, but I just commend to our listeners just sort of how much that is so rich and insightful is in each of the chapters about the first-year

curriculum. Thank you. I really appreciate it. And one of the goals, I think, at this book is it's

certainly geared toward a general audience that's never going to go to law school, but really want

to understand how our legal system operates, but also see it as something of a companion of sorts for first-year students who are either trying to understand what's going to happen,

“what the hell is happening in real time, or what just happened to me. And I think the April”

release date may make it useful for people who just finished first-year. Yeah, absolutely. So can I ask a question about the diagnosis of these different institutions and the legal profession more generally? Because I think you're right in describing so many of these dynamics, and then there's also this risk to me with this kind of critique and suggesting to people that

these are endemic to the legal profession and these institutions. And so they can never live up

to the ideal of equal justice under law. And so I guess I wanted to hear your thoughts just about how you think about describing these dynamics within these institutions legal profession more broadly, but also in the spirit of encouraging lawyers and institutions to be better and not accept that this has to be this way, which is sometimes what I hear from people making a similar critique, but I didn't get in this book. Yeah, you know, I would say, you know, I took law of democracy,

essentially election law when I was at Berkeley with Petrol Ross. And I remember in the beginning of the semester, you know, just talking about democracy. And you know, one of the helpful things that he said is that, you know, part of what we're going after is aspirational. And I think about equal justice under law in similar ways. Like, I don't know that it's something that will ever be fully

achieved, I mean, empirically. There's always going to be instances of inequality, but I like to

think of, I like to think of it as an aspirational ideal. And I think part of what troubles me is that in many parts of the curriculum and in many corners of the profession, it doesn't even feel like we're doing this kind of aspirational work. And I want to be clear that I think that this varies depending on the site, you know, I think law schools are situated differently. And I think I said in the book, like a place like CUNY, it's going to be different than a T14 law school. I

suspect that CUNY is doing a better job at some of the things that I'm describing, then some of the, you know, to the extent that T14 is a trip that people even use. And I think the same applies to law firms, public interest attorneys and government lawyers, that there are attorneys who are aspiring more toward that ideal. And so, you know, I try to be encouraging in that context, you know, sometimes get questions from students, you know, who have a sense of my diagnosis

from reading my other work or chatting with me in office hours about how can I remain optimistic and I just try to point them to history and thinking about, you know, civil rights activists working along the lines of race, sex broadly, construed, and disability. And highlight that, you know, the fact that, you know, they engage in advocacy with a much more limited toolkit and in a much

“more hostile environment. And so, that's how I think kind of think about how to work toward”

that aspirational ideal. Yeah. Okay, so next thing I want to ask about is, you mentioned the law from executive order is issued by the Trump administration and, you know, Donald Trump sort of

the stakes, I think, of a professional production pipeline that it's insufficiently attuned to the

human costs of deploying the skills that law school imparts. And I guess to explain that just like, you know, you have lawyers in the Trump administration who are concocting arguments that have the kind of, you know, like sort of shiny cover of sort of clever legalism in defensive the president's priority and, you know, literally, you know, dismantle agencies or render babies, state lists, or cancel billions of dollars in federal funds. So, so I just mentioned this because if folks think,

well, legal education is a, it's not a niche topic, but it's maybe not one that affects everybody. It actually does produce these players who have enormous impact on all of our lives. So,

so that that's kind of like a wind up to a question that's actually about something different,

which is about the decision to focus just kind of mostly on ordinary professionals working within normal rules and incentives rather than on obvious villains or kind of like sensational bad actors, because that seems like a very considered choice you make in the book, and I'm curious about why you chose that framing. Yeah, I would say I chose the framing for a few reasons,

“some practical, some kind of conceptual, I think that practical explanation is”

I started this project in law school a decade ago before Trump entered office and so the project preceded him and it's ending while he's still president, but that it felt important to me to not make that the center of my attention. So, I would say that, I think one, I think I'm generally disinclined to focus too much on sensational topics. I think that, you know, another goal of this book is for you know, I think about Scott Toro's 1L, which is fantastic book,

and my hope is to be, uh, I don't know that I've ever displaced Scott Toro, but I want this book to have background to it, lasting enduring impact and I think focusing just on the present, I think would frustrate that goal, but then there's a deeper conceptual explanation and I think that's just tied to the fact that much of this actually predates him and it will, what I'm describing, that's the spectacle outlast him and so, you know, you focused rightfully on, you know, much of what

“the lawyers in the Trump administration, what they're doing, but I think I could probably point to”

something in every presidential administration before Trump, where lawyers were engaged in problematic behavior. I was just at a talk where people were commenting about the lawyers who wrote the Dear colleague letter under the Obama administration and people were raising questions go, what's what's so different between what those lawyers did and what the Trump administration is doing. You know, obviously there's the big conflict about the torture memos under the Bush administration,

or historically the fact that lawyers were central to the regime of slavery. So there's a kind of historical explanation that lawyers have been responsible for perpetuating inequalities, but on the flip side that also have been responsible to challenge it, which brings me back to my previous answer. And then I just think, you know, we'll see what happens in 2029, but I suspect that these same problems will still be sitting with us and then we'll have new ones,

you know, as it relates to, you know, artificial intelligence and the law school context, you know, the rise and the accommodations, you know, I think that there are going to be problems that just outstrip the Trump administration. So you are refreshingly candid about the institutional and personal headwinds at this book, confront. So you write, quote, "some will consider its sacrilegious. My takes will almost certainly generate negative reactions from legal establishment types,

IDGAF. Their comfort is not my concern. My sleep schedule remains unaffected." And quote, honestly, thinking about getting that on a t-shirt or like tattooing it to my inner eyeballs,

amazing line. And, you know, you are also confronting kind of current headwinds around social

justice, DEI, and what can say if we'd be sad or implemented across various sectors of the legal profession. So I guess, you know, who do you think this book is for what readers do you have in mind when writing it? I think I had a two-pop line in there that a colleague suggested that I take out because it was a bit too flagrant. So that was the fight of pride. You can use it here if you want to. Exactly. Exactly. I think it's a place for the cutting-run for sex. I think it's receded

“to my memory, but maybe I'll watch it to come up in the future. I remember. Yeah, I mean, I think,”

I mean, I would say a few things. Again, I think I would say the kind of general reader

across a variety of subject areas. So you think about climate change, healthcare, housing,

“disability rights, free speech. You know, I intentionally wrote this to cover a broad swath of issues”

because I know that people read modularly. I know that there's a vast attention in economy. And so, you know, I would love for people to read my book from front to end, but I also know people are, you know, people included myself can be alicart about what they decide to read. And so, you know, I would say for general readers, I really try to cover many issues tied to inequality that may be of interest to them. But I'm also trying to speak to law students. You know, I would say,

you know, I kind of wrote this kind of as a kind of letter to myself in terms of what I want, what I would want to know before entering law school and before entering the legal profession,

I find, at least with myself and with some of my peers and colleagues that we tend to have the

same conversations with law students every year about the detachment between doctrine and lived experience. And so, I was hoping that this book could be something that could memorialize some of these discussions and have it so people can have a physical thing to have kind of conversations around. And then I would say lawyers and I'm really trying to push lawyers, I know the books provocative intentionally so, but I also try to be rigorous because I'm a scholar and that's important to me.

“But I think, you know, oftentimes when we think about the causes of inequality, we tend to point”

to racism, sexism, capitalism, the various phobias of the world. And I think that those things matter, but I actually think it's much more uncomfortable to point to lawyers because, where lawyers,

we train lawyers and we tend, in the general public, tends to think about lawyers as people who are

professional and necessary and not as people who are accomplices to inequality. And so, I would say I'm really trying to speak to general public interested in issues of inequality, law students and the legal profession. Well, all of those perspective readers and more and I'm going to throw law school deans into the mix because there are lots of, you know, actionable suggestions about sort of how to address

some of the dynamics that you're almost just talking about in the final portion of the book, but you'll have to pick it up in order to actually get those. But it really is a searing, but also humane critique of legal education and the legal system and it really needs to be read far and wide. The book, once again, is law and trial by Sean Oseousu. We will be thinking about it for a long time. I guarantee if you read it you will as well. Sean, thank you so much for this wonderful book

and for taking the time to join us on strict scrutiny. Thanks Kate. Thanks Leah. I appreciate being on. Thank you. Thanks again to Sean for a great conversation and now it is time for our favorite things. Okay, I've just got a couple. I mentioned I'm going to see Florence in the machine tonight.

“I haven't seen the show yet, but I think it's already one of my favorite things this week. I'll”

report back. I have been very into Robin's new existential album. Yeah, I'm sorry. It's weird. I was like calendar marked for it to come out and then it came out and I just kind of forgot to even listen to the whole thing and put out a couple of singles and little clips from singles and events. But now that I've actually started listening to the album, it's so good. It's hilarious and energetic and great. So definitely recommend that. A lot similar to her earlier stuff, but then

some of it, new, kind of like motherhood themes and lyrics and but but it's deranged and great. Other recommendation is actually two interviews with Nicholas and Rich who was interviewed in wired and then actually by Tommy on Podsafe the World about his new book, Woodchipper, whistleblowers account of how the Trump administration shredded USAID. I mean, you knew it was bad as like Elon and Doge destroyed the foreign aid apparatus of the federal government and, you know,

we sort of all sensed and then kind of later from experts had a real understanding of the literal human stakes and body count of the decision to savagely, statistically, terminate these life-saving aid programs. But this insider account kind of fills in the details in a way that's even more disturbing than from, you know, the perspective that we all had kind of watching from afar as this carnage unfolded. So definitely check both of those out. And I've also loved this week

the excerpts from our co-host Melissa's conversation with Sally founder of Argent the clothing line that we've all talked about and love on her work friends series. They're just like wonderful, delightful little like excerpts of Melissa being, you know, charming and brilliant and, and Sally asked some great questions. So I've really enjoyed that this week. Can we, can I preemptively manifest enjoying being a work friend and podcast friend dressed in more art and clothing at our New York

would have listed Robbins's existential kind of like Hillary Duff's luck or something album. It just really grew on me. I think I have some issues where singers release lead singles that I like a ton, you know, unlike often every Taylor Swift album or, you know, Charlie's weathering heights

album, like the lead singles are never my favorite songs, whereas not so much the case with

existential and luck or something. I saw Lily Allen's show in DC. It was everything. I loved it. Just incredible. I got out kind of a lot of fear of things, sorry. So the Lego videos of cash but no, I'm gonna imagine this, but I don't think I've seen them. What is, what is the

“list you have to do? They're like, you know, replaying the Atlantic story, you know, reenacted”

with Lego. It's the school of physical, the Poodle Room, the Poodle Club. Just, you got to check it out. Okay, it's really great. It's really great. As I kind of alluded to up top, really loving, no accounts are great divide. I loved his tiny desk concert. You have to be in the right mood. It is at least a tiny desk concert. The saddest thing since Taylor Swift performed, I can't stop loving you. Just very, very sad person energy, you know, great time to be sad, but yeah,

loved it. So two related posts that I really liked, one was on the Bullark by JBL and that was it is time for ruthless aggression. And the other was by Brian Boitler at off message. The Jerry

Manoring fight should be addressed for her soul for court packing. And both of them are basically

making the same argument that, you know, the Democrats basically being willing to fight by engaging in partisan Jerry Manoring in order to achieve like a more nationally equitable fair outcome is something that they should get comfortable with and be willing to deploy when it comes to Supreme Court reform. And I just really like these takes being out there. I don't love that the Bullark is to the left of like the median democratic official on the Senate, but maybe this is

the way of getting them there. So like those. And then as we were kind of alluding to, Steve Vladik had a great post on one first called same-washing the emergency. Docket responding to some of the efforts at Kate and I were alluding to that just try to kind of throw out, well, you're misunderstanding. There's this way of explaining what the court was doing and a way of analogizing it to things that court had done before that just make it no big deal. And actually

all of the court's reasoning was great because they involved legal standards. And Steve just has the constitution to actually do the replies and responses. So and I just like a really

pirate because I tried to do this kind of during the first Trump administration where I was actually

willing to kind of be in social media on the replies in the comments. And I just I can't do it. It just completely taxes all of my energy. And so I can do it in certain fashions like writing my own things or right talking on the podcast, but I can't constantly be on social media doing it

“and reply in comments. And but that's important. Like it is really important to do that. And you know,”

again, more power to Steve. God bless. Yes. Yeah. Okay. So one other small thing. So I've talked about before. The paperback version of my book, Lawless is coming out June 16th. Has an entirely new section on the unitary executive. And again, because I mean, I like updated all the chapters, I can go into reasons why later. But I want to run a giveaway. Like I did last time where if you pre-order the paperback, you know, you can get a t-shirt. And so I'm willing to accept requests for

what t-shirts I should make. So some possibilities that I had were I kind of like what you just said, like, but courts, you know, maybe vibe maxing, maybe, you know, good vibes rising, maybe week on crime, again, willing to accept suggestions. So yeah, you know, hit, hit me up with those ideas. All right. So once you tell Leah what to do for the t-shirt giveaway, she will announce what she's doing. And then you can get on it, pre-order that paperback, well and advance of the June 16th

“update, I'm excited. I don't want to read the new chapter. Do you have to tell me of the, um,”

so back, or it's done, you have PDFs now. Yeah. So I, I don't, um, but I can send you a copy, I'm just gonna sit us out. Um, yeah, because I will be out there chatting it up. As well Melissa, who's becomes out about a month earlier than yours, but you guys will be like, just a little bit overlapping and like the kind of class circuit. It comes out next week. Yeah. Oh, it's next week. Okay. All right. Melissa next week, happy

release Eve. I know you're out there recording your audio book and, and doing all the other things. I'm excited to see it out in the world. Me too. Strix crude news, a crooked media production hosted an executive produced by Leah Lipman, Melissa Murray,

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