How SCOTUS is Waging Electoral Warfare

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But with unmistakable clarity she said I asked no favor for my sex. All I asked of our brethren is that they take their feet off our backs. Hello and welcome back to strict scrutiny. Your podcast about the Supreme Court and the legal culture that surrounds it. We are your host today on Kate Shaw. And I'm Leo Whitman. And we are without now two-time New York Times bestselling author

“Melissa Murray. Yay. That was a yay for New York Times bestselling author and not for her not being”

here currently clear. I hope that was clear, but in case it wasn't. All the cheers for Melissa's bestselling status and not for her absence. But yes, she has somehow managed to make the constitution of bestseller, which means we all get to spend the summer constitution maxing even more than usual.

So huge congrats in absentia to Melissa. James Madison could never. Never. So today's show is

about Louisiana giving Texas a run for the main character slash villain of this timeline. When it comes to the continued fallout from the courts appalling opinion in Louisiana versus Calay. And in its efforts to restrict access to abortion. For the post Calay conversation, we're going to be joined by special guest and friend of the show, Ari Burman. But we're going to start today's conversation with breaking news, including the latest

developments in Louisiana's effort to find another route for restricting access to Smith or Preston after anti-abortion doctors failed to do that in FDA versus Alliance for Hypocratic Medicine. Put it pin in that case name. We will come back to it. So we're going to start there. We will then cover the courts opinions from last week and some opinions and developments in the lower courts and the executive branch. And after that, we will bring you our conversation with Ari.

And of course, we will end with some things this week that weren't awful, aka our favorite things. Then we're going to bring you a great conversation. Melissa recently had with her colleague Kenji Shino and his co-author David Glasgow about their new book, how equality wins a new vision for an

inclusive America. But first up, the Supreme Court on the Shadow Docket. So on Thursday evening,

the Supreme Court issued a stay that allowed me for Preston to remain available on the same terms that it has been for several years now. That is under federal law. It can be prescribed using telehealth and sent by the mail. It will remain available on those terms while litigation brought by the state of Louisiana plays out. Despite the Fifth Circuit's efforts, Stanford Stormtrooper, Stewart-Kyle, Duncan's efforts to give Louisiana everything it wants now.

So that's a good news. They're only short-term. But the court issued this stay in a pretty irregular way, and the stay was accompanied by truly unhinged descents from both justices Thomas and Alito. Kate and our friends, Steve Latic, covered this in a rapid response conversation on Thursday, which is available on YouTube. But there's a lot more to say. Indeed.

Okay, we will explain. So after the Fifth Circuit purported to invalidate the FDA regulations that

“allow me for Preston to be prescribed and sent without any in-person consultation requirement,”

the drug manufacturers, but actually not the FDA who's regulations are an issue, asked the Supreme Court to stay the Fifth Circuit's decision. Justice Alito, who is the Circuit Justice for the Fifth Circuit, then issued two short-term administrative stays, which are just these kind of short-term pauses to give the court a chance to kind of

consider a request for a longer-term stay. And the second of these was set to expire last Thursday

at 5 p.m. That meant the court on its own deadline needed to act by 5 p.m. to either issue another administrative stay or act on the underlying application for a stay pending appeal. But the court did neither. As 5 p.m. came and went. And let me tell you the group chat was blowing up for others. Many, many others. As we all waited to learn, whether our overlords in robes

“would decide that people who want to get and use a super safe and approved drug using a”

super safe and approved method to terminate a very early pregnancy would be able to do that or whether Sam Alito could convince for others that no they shouldn't because that's called

democracy. Anyway, around 5 p.m. 30. So 30 minutes of complete chaos later, the court finally

did grant the stay pending appeal. That means despite this half an hour of uncertainty during which providers and doctors and manufacturers and everyone was in complete an indefensible legal limbo but didn't really know what the law was. After that period of uncertainty the court did grant the stay. That is the good news. But that unreasonable stay order was accompanied by truly unhinged dissents by Juan Justice Thomas and Juan Justice Alito. So Leah, let's talk about those.

Yeah, so before we do just to repeat something you and Steve talked about on the YouTube

“rapid reaction, but I think is important for people to understand this period of uncertainty and”

the wondering around 5 p.m. is entirely of the court's own making. There didn't have to be a deadline on when this administrative stay would expire but Justice Alito created one. And then somehow even more agree, justly, it seems like it may have been Justice Alito himself. That then caused the additional delay because he was working on this truly unhinged writing that may have delayed when the court actually issued the order granting the stay. So this chaos and this new

independent new source autonomy news reported that in that period there were actually doctors advising people that they couldn't prescribe a prison period, like at all not just over telehealth, that that was all the court and Sam Alito's doing. So yeah, I mean this is what their shadow documentary, Steve and I didn't sort of speculate about that. We were you know asking about the delay, you know, was it just the two separate writings? Yeah, had someone gone missing the way Neil

Gorset's definitely had when the court failed to act as SBA, it was scheduled to go into effect. But I also had this thought after Steve and I finished recording, which was like, is it possible that someone was trying to talk Thomas and Alito out of these insane descents and it just didn't work? I mean, I don't want to like ascribe too much like sort of good sense or good judgment to John Roberts, but maybe someone on that side was like, guys, are you sure? And there was a

little bit of a back-and-forth or maybe there was like even crazier stuff that got taken out after intervention like Bosch anyway. So I just hope that Jodi Canter and Adam Laptack are on the case because I feel like there is a story here and we should know it completely. So now onto these two truly unhinged descents, which may have played some role in creating this delay. So first,

Justice Thomas, as always, would go further much further than any other justice,

he penned a screen that seemed entirely uninterested in the court's supposed legal standards that are supposed to govern a state pending appeal. And instead use the opportunity to basically say, lock her up, like lock them all up, lock everyone up. That is the deal with the portion. It is. At least with respect to abortion medication, because he said the entire enterprise violates the 1873 Comstock Act. Regular listeners will recognize that law. This is the Victorian

era law that bands the banning of obscene materials. And that project 2025 has advocated reviving as a way to ban abortion nationwide. This was one of the legal theories in the previous medication abortion case FDA versus Alliance for Hypocratic Medicine. So under this theory, the idea is courts could essentially just revive this law to function as a nationwide abortion

Absolutely. And just to say, you said, you know, that essentially would render illegal all mailing

“of abortion drugs, right? Everywhere, no matter what the status of the state law is.”

But I also think, and we've talked about this before in the show, it might go further than just abortion medication because, yes, it's literally medication abortion is like obscene material under the Comstock Act. So to are the surgical implements and other medical devices used in procedural abortion. So you could very easily try to revive this unconstitutional to be clear,

zombie law from the late 19th century, basically used to lock up hysterical women who advocated

reproductive autonomy. Like that literally is the original story of the Comstock Act. This sort of Victorian erypurity law that is still on the books, just waiting to spring back to life at the hands of someone like Clarence Thomas. But yeah, it could well be used as a nationwide abortion ban as two kind of all forms of abortion. Yeah. So he wrote, quote, applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise. They cannot

in any legally relevant sense be irreparably harmed by a court order that makes it more difficult for them to commit crimes. And quote, this is a judge on the nation's highest court who granted the president sweeping immunity to commit crimes. Now declaring that the provision of medical care is a criminal enterprise and describing that as committing crimes. Also, sir, this is an arby's by which I need a stay application in an administrative procedure act case. And yet he appears

to have charged and convicted these parties in the criminal legal system of his own mind to call this contemporary injudicious would be a gross understatement. Also, just wanted to note, he did not write this in the FDA versus Alliance for Hypocratic Medicine Case back in 2024, which was decided in the summer leading up to the presidential election. Could it have been because that would have been it really inconvenient time before the court nullified the voting rights act

to inject the idea of a judicially ordered nationwide abortion ban? Perhaps one is left to wonder. That is such a great point because of course we do have an important election looming, but hey, you know, three weeks ago the court made it a lot harder for the Democrats actually to make meaningful gains in the November midterm elections. And so maybe Thomas is no longer worried about the electoral consequences of injecting a relatively unpopular issue into debate

and political landscape just months out from a really important election because, you know, if it's not going to be a genuinely free and fair and representative election anyway, like just do it and be a legend. I was I was actually stunned by this opinion. Like the case, just to freelance

“like this and just accuse drug manufacturers of crimes was just something I think more extreme”

than I've even heard, Justice Thomas who, as you said, has always kind of the go for their most

extreme voice on this case. This was like a clearance, Thomas, not clearance, Thomas. It was just was not well done. It was unhinged even for him. Yeah. Yeah. Strix Crutney is brought to you by Quinn's. As you all know, Melissa is Quinn's Pilled. I'm Quinn's Pilled. What you might not know is that even our dogs are Quinn's Pilled. Yes, I've been more intentional about what I wear day-to-day, leaning into pieces that feel easy and comfortable

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Leah, which you found worse. I found it a pretty hard choice. I found Alito's kind of less unhinged. Thomas was really unhinged, but also more hackish and somehow more chilling. I don't know. If you had to choose. If I had to choose, gosh, this is truly a hobson's Sophie's choice. They're just both awful in very different ways. So I'm going to cheat and just say the entire Supreme

“Court. Okay, fair enough. Okay, but let's talk about the Alito writing. So out of the gate,”

he accuses the drug companies of, quote, a scheme to undermine our decision in Dobbs versus Jackson Women's Health Organization. So reminder listeners, Dobbs pretended to rest on principles of democracy when it claims that it was over-family, don't know our. So he claimed back then to be returning the question of abortion to the state and a democratic process, but it was crystal clear and dobs and it is even clearer here that the only democratically legitimate choices and the only ones

that Sam Alito recognizes and that the law should protect are the choices made by legislatures in places like Louisiana. And that is choices to restrict or prohibit abortion. And they're democratically legitimate choices are being undermined by a federal law regime in which abortion pills are available by mail. Also, ask to risk the product of democracy and actually the kind of

law that is federal law that's supposed to be Supreme but details. So the answer is to eliminate

that access, including in states that have through their own democratic processes, chosen to still protect abortion in a post-Dobbs world. So that, you know, is what the kind of mind of Sam Alito has produced here in his view. And this is evident in the writing. There is essentially a conspiracy between the FDA and by the administration somehow still pulling the strings to make it impossible for states like Louisiana to enforce their abortion bands. Now Alito's opinion did not

rely on Comstock as Thomas had, but it basically did accuse these parties of crimes if people states like Louisiana obtain and use their drugs. Alito writes, quote, "they," that is the drug manufacturers cannot in any legally relevant sense be irrefibly harmed by a court order that makes it more difficult for them to commit crimes. He also ran to the back shield laws, which were not an issue here,

Governor Kathy Hockel, also cited in passing Secretary Bear Juice as additional support for the kind of dubiousness of the legality, I guess, of the FDA regulations in general, not totally clearly what he was

“doing with that. But that's, I think, the sort of highlights lowlights of the Alito opinion.”

Yeah, I mean, just to add just a few things because this was really out there. He doubled down on this idea that democracy only means anti-abortion and restricting women's rights. This is something he has gestured at in previous cases a case out of Montana where he suggested that that states judicial bypass law may be violated the federal constitution in allowing, you know, miners who occasionally obtain abortions without their parental consent. Also, he, I read it as kind of taking a swipe

at the FDA for not moving quickly enough in acting to restrict medication abortion. And I think that's also how the FDA read it because soon after they posted on Twitter, don't worry, Daddy,

we're working on it. So basically, it's at the Supreme Court's order issued today,

maintains a status quo. But the FDA will press forward to complete its science-based safety review.

“Again, the FDA here is just acting like complete cowards. It's clear they don't want to do anything”

before the midterm elections. They couldn't bring themselves to actually file a stay application seeking to stay the fifth circuit. But neither right could they bring themselves to actually act on potential additional restrictions where I'm ever pressed down in the lead up to the midterms. Just complete coward, Craven, behavior like the Supreme Court itself in Calais. So, yeah, um, those were lowlights. There was a brief shining moment in this Alito separate writing,

which included the following glorious footnote, which at the time we are recording has not been corrected. And it is clearly meant for Arco host, Melissa Murray. I'm so sad. He's not here to hear us talk. I don't have to come back to it next week. But sorry, go on. Go on. Tell the people what they're talking about. Sites, some papers that were filed in that previous medication abortion case, Alliance for Hippocratic Medicine. Only it captions the case as Alliance for Hippocratic Medicine

versus FDA. I'm not sure whether to take this as a Freudian slip. Or as a sign that Sam Alito does indeed hate listen to the podcast. Or at least as clerks do. Or, right, assign that there is a clerks sending a signal for help. Right, this is like an SOS from inside Alito chambers. I don't know, but it was, yes, this is tiny little glimmer of sort of joy and a car humor in that otherwise truly appalling sequence of events and words that emanated from this Supreme Court.

“So I think that nothing good is going to come from this FDA internal review that Kennedy was”

like so excited to talk to Josh Halley at a hearing someone's ago about. So like that is ongoing. It could well be, and this is something that Flatic mentioned in a rapid response video, as soon as we get past them in terms of the FDA announces, it's self that it's rescinding these kind of loosened regulations allowing for telehealth and then this case goes away. But for now,

the bottom line is mythopristone by mail still okay and the Supreme Court like definitely still

not okay and less okay even then before Thursday of last week. I know it keeps getting worse. And don't worry, it got even worse from there because shortly after this Supreme Court did the right thing, even though two justices said some crazy things in the mythopristone case, it followed that up with a pretty horrifying order in a capital case out of Texas. So in this Texas case, Guerrero versus Busby, the fifth circuit had stayed paused the execution of an individual

who an expert had concluded was intellectually disabled. This is the famously liberal fifth circuit that had granted this brief delay to allow some additional inquiry into whether Busby was intellectually disabled and therefore could not constitutionally be executed under the eighth amendment. But that short delay was evidently intolerable for the majority of the court, which lifted the fifth circuit. Stay without a word of explanation. Justice Kagan would have denied this day,

but didn't write. Sorry, that was one additional note about that Alito descent. It bitched about this un-reasoned order issued by the Supreme Court. Again, sir, you were simultaneously about to issue another un-reasoned order also. You've been doing this every way to Sunday,

but never mind, but in this Texas capital case, Justice Jackson joined by Justice Suttamaio,

or a pen to descent quietly excoreating the majority that ended with this quote. In capital cases, we rarely intervene to preserve life. I cannot understand the courts rushed to extinguish it, much less in the circumstances of this case and quote. Right. If you need any further evidence of

lenient in the case, the capital case of a scheduled execution of an individual who might

“not constitutionally be eligible to be executed, at least under the court's current eighth”

amendment cases, and just a brief delay to figure out whether the Constitution permitted this execution to go forward at all was intolerable to this court. It was truly stunning. So let's shift to some news from the lower courts and also just kind of a general corruption watch, which is obviously a feature that we could run every week, and just especially kind of banger of a

week on that beat. Okay, first news from the lower courts. We wanted to highlight an opinion that was

issue last week from a Rhode Island district court that was one of the most scathing indictments of federal government's lawyer ring that I at least have read in a judicial opinion. So the case captioned in-ray administrative subpoena to Rhode Island Hospital involves a DOJ effort to get patient records from the largest hospital in Rhode Island that provides gender-affirming care to minors.

“As part of an ostensible fraud in just like the biggest scare quotes because obviously this”

has like fuck all to do with fraud, but an ostensible fraud investigation DOJ had demanded the birth dates and social security numbers and addresses of every minor patient who received any kind of gender-affirming care over the past five years in this hospital. This demand came via an administrative subpoena, so just issued from the Department of Justice that DOJ then tried to enforce in a Texas district court which granted DOJ's request for enforcement. Most egregious forum shopping,

ever the Rhode Island Hospital and a child advocate representing the informational privacy interests of the patients then moved to Quash, the subpoena and the court with a Trump appointee by the name of Mary McElroy granted the motion to Quash the subpoena. The case presents some complex questions about standing administrators, peanuts and the food drug and cosmetics act, but what's not complicated is how appalling the court found the government's conduct to have been throughout a few highlights.

"The United States Department of Justice possesses immense prosecutorial authority and discretion as citizens we trust that federal prosecutors when wielding this awesome power against a state, a company or certainly against vulnerable children will play fair and be honest with its counterparts and the judiciary. DOJ has proven on worthy of this trust at every point in this case regarding some of the representations that DOJ made to the court the court called them quote clearly misleading

if not utterly false. She also said quote this reckless disregard for the duty of candor owed to a federal court is appalling and she made clear that at least in her courtroom the presumption of regularity no longer a thing." She gave details, she named names, it sounded as though DOJ had just really straight-up lied about how it's negotiations with the Rhode Island hospital had preceded why it went to Texas when it did. I mean if you want more and she goes into a lot of

detail and says that things that were in the quotes that were just read but in a bunch of different ways we would highly encourage folks to just read the thing which just has a lot more fire than your average case titled in a administrative subpoena and just like kind of more fundamentally as the underlying issue in the case it is just a reminder that this administration's war on trans kids and their lives and their health is relentless, it is pathological and sadistic

and we just cannot allow ourselves to get in your to it. It is scandalous and we should be talking

about it all the time. It also has this similarity to the medication abortion case in basically

trying to hijack or leverage one state policies and political views in order to impose them on every other state, contra federalism of course there is a historical analog for this it was the fugitive slave laws when slave states effectively forced anti slave free states to help them enforce their laws on slavery but that is no that's exactly right right so you have a sympathetic forum in Texas that has the same anti trans agenda that you do executive branch of the government

or DOJ here and you can try to use that against a Rhode Island hospital that consistent with

“Rhode Island values and law is providing gender from in care to minors and yeah I think the”

fugitive slave analogy is really powerful actually. So we had some big DC circuit arguments last week

there were a couple of ones we had wanted to talk about one involves the administration's campaign against Senator Mark Kelly from Arizona recall that the Justice Department tried and failed to get a grand jury to indict Kelly and the other members of Congress for a video they made reminding service members of their obligation to follow the law i.e. not to follow unlawful orders but you may not recall that the administration is still going after Kelly not criminally but at least at

as well as former astronaut so he's still entitled to pay a lower court preliminary in joint kegs breath from going after Kelly this way and the DC circuit seems inclined to agree that the

first amendment doesn't permit the sort of late and political targeting and retaliation that

headset is engaging in. And sort of a similar argument unfolded in the DC circuit involving the consolidated appeals in the challenges brought by several law firms to the administration's wildly

“unlawful executive orders targeting them firms here I think are perkins and Wilmer and Jenner”

and Susman and I think the Mark Zade as well you know there was a consolidated oral argument but there were some separate briefs on some slightly firm distinct issues but in any event this was the argument last week and DOJ remember actually initially said it wasn't going to appeal it's resounding district court losses in these cases but then changed its mind and evidently decided it wanted to just go big and lose big in the DC circuit instead um so Paul Clement argued for the

firms I listened to a bit of the argument and I think he is clearly in the firms are clearly going to win the panel wishing to pass in and pillar and row and I didn't hear enough to know where row was I actually didn't hear asking questions I'm guessing nowhere good because this is a case involving the Trump administration um but I still think the law firms are definitely going to win and

“the big question is will DOJ decide to leave it there or try to get scotists to take this out yeah”

so some news from DOJ slash corruption watch later this week trump's personal lawyers and Trump's DOJ lawyers are supposed to file briefs in the case they are ostensibly on opposite sides of about whether the internal revenue service has to pay it's boss that would be Donald Trump

ten billion dollars if that sounds insane it is and we all need to be talking about it and we all

need to be talking about it especially because this week we learned that in addition to this insane and possibly collusive lawsuit or maybe the whole point of this insane and possibly collusive lawsuit is that Trump and the IRS trump and his IRS are ostensibly maybe are reportedly in settlement talks so we learned that mid last week and in late last week ABC reported that those talks might be moving toward an agreement in which Trump drops this lawsuit and then Trump agrees to create a

1.7 billion dollar fund for Trump's friends and family and J6ers yeah so much better also this is just going to make another section of the 14th amendment great again which doesn't are insurrectionist from holding public office not that one but does bar paying them bucktons of federal money but really this is happening those are the none those are the unenforceable parts of the forting the men that we hate I forgot thanks thanks go to according to ABC news quote this fund would be to

compensate allies who claim they were wrongfully targeted by the Biden administration the reporting continues quote the commission overseeing the compensation fund would have the total authority

to hand out approximately 1.7 billion in taxpayer funds to settle claims brought by anyone who

ledges they were harmed by the Biden administration's weaponization of legal system including the nearly 1600 individuals charged in connection with the January 6 capital attack as well as potentially entities associated with Donald Trump himself I mean words kind of fail this is absolute madness like we have to keep talking about it because it's one of these things that seems

“so comical and absurd that like what can you say but also like it does feel like the only thing”

that could potentially stop them at this point is public outrage at just the unbelievably rank corruption on display here and so we will keep talking about it and I really hope that the print and television and other press keeps the focus on this because I can't imagine anyone at DOJ who continues to have a shred of dignity or integrity going along with this and maybe the answer there's no one left like that but down down you know in the actual ranks like I do think there's

still are and maybe all of those people will be completely boxed out of this kind of you know crafting this deal and bouncing it but it just feels like internal pushback is super important and public pressure is super important so in that vein of kind of what is happening inside the halls of DOJ there was some pretty interesting reporting last week from CNN that last year just after he took on the role of deputy attorney general Todd Blanch who of course is now the acting

attorney general auditioning for the job full-time was told by the top ethics lawyer at DOJ that he needed to recuse in cases involving a Donald Trump and his personal capacity because of course he is Trump's former personal lawyer that would presumably include the IRS lawsuit so I'm sure the

the number three at DOJ was evidently told the same thing by the ethics folks at DOJ and I mean

you know again it's like it's easy to just feel like everything is hopeless but if we are ever

“in a moment of reckoning um this is the kind of thing that I think can and should really matter”

that they were told that there are receipts for there having been told that it would be intolerably corrupt and possibly violation of DOJ policy and more to continue to participate in these kinds of matters and they did that anyway and so I do think this kind of reporting is really important so you know just because you don't make any headway with internal like efforts to remind of the continued force of law inside DOJ at the moment you're also I think making

a record and that record could I think in this week of history matters so that feels relevant to the current conversations about this settlement with the IRS. Yeah also in DOJ corruption watch the times reported last week that DOJ is dropping bribery charges against Indian billionaire Gautama Adani after Adani hired former Trump attorney Robert Jufra in addition to luring up with Trump's former lawyer Adani evidently pledged that if the prosecutor's dropped

charges he would invest $10 billion in the United States economy the figure just keeps coming

out and there's something about it exactly also creates 15,000 jobs in response to questions the parties involved in the negotiations are insisting that these money and jobs promises have nothing to do with the decision to drop charges sounds good to me maybe you have a Marshall notarized that and we can all move on perfect and that wasn't it because also this week you know Boeing and Toyota apparently each donated a million each to help fund a new reality TV

inspired show starring secretary real world road rules challenged Sean Duffy with his family on a road trip but the grift and corruption in rot are just so deep and as heartening I don't know what else to say beyond we need to be talking about this and how this is just a highway robbery of the public fist in American people and taxpayer money left and right one additional thing maybe give Jamie Raskin the gavle so we can start investigating some of this stuff that would be good

happy a good step yeah okay and we have been doing the quote without context at the end of the show but because we have guests at the end of the show well maybe play this quote without context here so let's roll this from cash with a dollar sign patelle's recent appearance in the Senate

“I want to start by recognizing important work by the FBI to crack down on fraud in one case the”

FBI helped bring justice multiple former business owners who orchestrated a $205 million Medicare fraud scheme on the American people and those business owners filed nearly a million

false claims for services that they never provided any patience literally stealing from American

taxpayers and praying on vulnerable people who are suffering from Alzheimer's and dementia and substance abuse but thanks to the FBI those crooks were held accountable so I just wanted to ask you today if you would pass along my gratitude to those FBI agents for their tireless work bringing those criminals to justice I will ma'am the fraud work is often overlooked and it greatly appreciate that and very important but I do have to say unfortunately President Trump

the guy who says he's going after fraud granted this man Lawrence Drann clemency last June he was set free and let off the hook for the $87 million he owed in restitution and that's Senator Patty Murray questioning him and then the final piece of news I wanted to just mention has to do with elections happening tomorrow in the state of Georgia so if anybody needed additional reminders of the importance of state courts the post-cale timeline which we're going to

turn to in a couple of minutes should be that reminder the Virginia Supreme Court decision for example is the reason democrats won't have up to four maybe five additional how seats after this next election which could easily be the margin of control and more deeply with the kind of you know setting on fire of the federal enforcement scheme for participatory democracy

“state courts are going to be really important guarantors of the right to vote and to participate”

and so state courts just could not be more important right now which is why we want to highlight the judicial elections happening in Georgia on Tuesday so that's tomorrow if you're listening to the show when it drops there are two awesome progressive candidates former democratic state senator Jen Jordan and litigator Miracle Rankin who's a former president of the Georgia Association of Black women attorneys they are both challenging sitting Supreme Court justices so these are

nonpartisan elections but these are both progressive would be jurists and they have both made promoting democracy and participation a key campaign issue it would be a huge deal if they were able to out the sitting jurists and you know it's a really important court in a really important

eligible Georgia voter do not sleep on these races so back to the Supreme Court on Thursday the

“court released two opinions and argued cases both were unanimous the first Montgomery versus”

Korea Bay transport was written by Justice Barrett this case is about whether the federal aviation administration authorization act which preempts a lot of state laws related to the trucking industry preempts a claim that one company negligently hired another two transport goods that was the claim brought by the petitioner plaintiff who was driving his tractor trailer when he was struck by a veering MAC truck and badly injured the general preemption provision of

that statute has several exceptions including what's known as the safety exception and the court here found that this claim fell within that exception and therefore was not preempted i.e. it could

go forward so Justice Kavanaugh joined by a leader wrote a separate concurring committee and the second

unanimous opinion we got jewels versus a address ballast properties was written by just so to my or it involved the federal arbitration act so fa rather than fa a a a a a a in the preceding case

“this case was about whether a federal court that has stayed a claim in a case”

under the fa so it did had a case it stayed a claim to allow arbitration to proceed whether that federal court retain jurisdiction to confirm or vacate a resulting arbitral award as to those claims after the arbitration was over the court held that a court did retain jurisdiction under those circumstances had jurisdiction in the first instance it issued a stay and that didn't like that vested a jurisdiction after the arbitration is done so those are the two

from last week we're expecting another round of decisions Thursday of this week and we're likely moving into the kind of heavy big decision season starting in the next couple of weeks the biggest cases I would say birthright citizenship independent agencies right the fed and the FTC are likely not expected until late June but we also have from important election cases including early voting and campaign finance the trans student athlete cases several important immigration and administrative

law cases so those are going to start coming I'm not quite sure when but definitely the next couple of weeks help yeah this this is the bad time I mean it's all the bad time but the the sort of really bad decision season is nearly upon us for our next segment we are grateful to be

joined by friend of the show Ari Berman who's an incredible voting rights reporter over at

Mother Jones and who can help us make sense of this post-calorie landscape and maybe assist us in ordering our rage Ari welcome back to the show hey guys great to talk to you know what I'd rather discuss a death of democracy with than you too slash rage that would have bad find a way forward

“yeah I think Ari when we exchanged messages about him coming on we're like be therapy for both of”

us so and hopefully for our listeners a bit as well so Ari we are a little under three weeks from this decision and it feels like the aftershocks just keep coming so you follow this all incredibly closely can you just give us sort of a broad overview of what is going on across the states from this like three weeks out vantage yeah Republicans are just going state by state by state across the south just dismantling majority black districts with really a stunning amount of

speed I mean first it was Tennessee basically a week after Calay eliminating a majority black

district in Memphis that honestly had existed as a congressional district since 1923 they split it up into three different districts that run 200 miles into rural areas connected it to one county that was the birthplace of the Ku Klux clan another county that still flies the Confederate flag as part of its county seal so that just kind of gives you an indication of what they're doing after uh Tennessee Alabama Ridge Ruits congressional map we thought this was going to be impossible

because they were under a court order not to do redistricting through 2030 yeah so much for that because they had intentionally discriminated against black voters but their Roberts court and yet another basically unexplained shadow-docket opinion just completely left let them off the hook let them redraw their voting maps a week before the primary so can I just pause on that one and I will let you continue because we did a YouTube rapid reaction on the Supreme Court

vacating the various lower court opinions that had required Alabama you know two for example have two majority minority districts and also had found the engage in intentional discrimination the hypocrisy here impossible to overstate one they told us less than two weeks ago in Calay that the Louisiana case totally different than the Alabama case and two the lower court said Alabama head engage in intentional discrimination which just as the leader in Calay told us

was still the focus of the constitution and the voting rights act turns out that's not quite right either anyways yeah I mean they just basically ripped up every precedent every norm to allow Alabama

of the midterms because Calay was bad enough and that they let southern states have enough time to

“redistrict but here they were basically green lighting explicitly Alabama's vow to redistrict”

and I've never seen them use the shadow docket in this way I mean not to get too much into the

weeds but Alabama requested a decision by Thursday of that week and the Supreme Court made their decision one hour after briefs were due on Monday evening which have you guys ever seen them do something like that I mean it's really astonishing the speed in which they intervene on behalf of Alabama so we saw them do the opposite in the medication abortion case so basically so basically a map that has already been judged to be intentionally discriminatory against black voters went

back into effect Louisiana essentially did the same thing as Alabama they went further and just suspended their house primaries altogether when 45,000 people had already voted and essentially put back into place a map that also eliminates a majority black district that was also found like

“in Alabama to be discriminatory under the voting rights act so basically Alabama Louisiana”

both using maps that will eliminate a majority black district in a way that was already found to have violated the voting rights act to pre-calay and where the only federal courts to have on the merits asked the constitutional question right found that there had been unconstitutional discrimination the Supreme Court didn't like review and you know reject that finding they just

basically said put the maps into effect anyway am I reading that right? Yeah I mean this when both

of these states Alabama Louisiana were subject to really really thorough reviews by the lower courts and to some extent they dealt with this in Louisiana but I don't think they've ever adjudicated the map that they put in place previously not to mention in in Alabama just completely steamrolling a 501 page opinion by a district court that included two Trump appointees by the way who didn't actually seem very pleased by what the Supreme Court did and actually have ordered new briefing in

that case and so they could subsequently block the map it'd be fascinating I mean my prediction I don't know what you guys think is that the Supreme Court's gonna invoke personal of course to that go off the lower court from issuing that ruling saying it's too close the election one of course they put that map into place a week before the primary I'm fully expecting that to happen but anyway on to South Carolina I'm still going through the revival of Jim Crow states so

South Carolina they initially reject it. It got like a Sam Crow like Jim Crow Lido states at this point and just hearing you talking I'm sorry I'm now gonna start calling Louisiana versus Kelle by Kaley Clark's clan or Clark's Kaley like it's just stunning like the speed and it's

it's stunning so South Carolina was interesting because they kind of pulled an Indiana at first the

republican control senate rejected the the jerrymandering and actually said it was kind of fascinating listening to the leader of the republican control senate basically say we're already the most jerrymandered state in the country we already had our maps upheld in Alexander of verse end of LACP another terrible decision by the Supreme Court that in in some ways led to Kaley but nonetheless he's basically saying we already have a jerrymandered map at the Supreme Court upheld we don't

need to pass a new one and what what happened was of course like in all cases they've caved to trump they called a new special session where they can pass this map there'd be a seven oh map

“limiting the district of Jim Clyburn which I think is really really symbolic Clyburn is the first”

black member of congress elected in South Carolina since reconstruction he's the only black democrat elected in state history to the u.s. house obviously he occupies a huge position in the democratic party but I mean this is quite literally a return to Jim Crow if they eliminate this district because you're talking about a situation where the last black member of congress in South Carolina before Clyburn left in 1897 when South Carolina rewrote its constitution to disenfranchise

black voters and there wasn't another black member of congress for a hundred years and so they're going back to a situation where a state that is one core black can have no black representatives and I think that's indicative of what's happening across the south so that's kind of where we're at now Mississippi's going to redraw its district probably for next year to eliminate Benny Thompson the only black member of congress they are George is called a special session to probably

eliminate multiple majority black districts interestingly enough George had called this session now so that if they elected democratic governor November they couldn't veto new maps for 2020 eight so this is kind of a lame dot power grab by Brian camp so just all across the south

Dick Strix is just for to them as he is so fucking over this and I'm so tired of the resistance to awesome embrace of Supreme Court reform and people getting the extent to which the court is a huge ass problem for multiracial democracy like they do not deserve any respect or reference like we just need to describe them in the absolute brazen partisan hackish terms

“I think that's what's really become clear in recent weeks I mean for many many years as you guys have”

covered they have issued decisions that helped the republican party there's no doubt about it but the extent to which they've put their thumb on the scale of this election is really extraordinary I mean it's kind of like the 2026 version of the immunity decision I mean they are they are inserting themselves in a totally unnecessary and unprecedented way directly on behalf of the republican

party it's basically like they said we know that republicans are going to lose the house we know

that Donald Trump is going to be held accountable finally and what can we do to change that would undermine our immunity opinion so they have to intervene so they just completely changed the entire race for the house and remember mark a lies remind us of the set right if the decision like they asked for this case to be re-argued and like they invited this case because they wanted this opportunity to do exactly what they have done and this is the predictable fallout from it

yeah there was no reason for them to re-hear the case even if they decided in this way there was no reason for them to issue it in April it went against all of their stated precedence about not changing election laws in the middle of the election then they have followed that with just completely partisan actions in Louisiana and Alabama rushing these decisions to take effect on the shadow docket so that these states can maximally determine so I do think we are in a new phase

of electoral warfare by the Roberts court and I think people have to understand that this is not just a conservative court it's a rapidly partisan court I think people understand there's a six to three majority right it's a conservative majority they're usually gonna do conservative things these are not them doing conservative things these are them doing like outwardly partisan things that lead to a much more authoritarian form of government and to me that is really a breaking point in terms of how

the public views the court and I think it's really going to accelerate these calls for a supreme court reform that you guys have been talking about I mean I don't even think Democrats right now are talking about national legislation to combat this decision because they just feel like the court will strike it down so before you talk about a ban on partisan gerrymandering or new voting rights

“after any of those things you have to figure out a way to change the composition of the court or”

else this course just gonna strike down whatever congress does in response to its rulings yeah absolutely so speaking of the long history of the court doing things to help Republicans are a you've had John Roberts number for longer than just about anyone and we are immensely grateful for it of the terrible things the Roberts court has done where would you rank I guess I would say we San versus Kelly and the fallout like including what they did in Alabama and whatnot right at the top I would say

the worst or close to the worst thing the Roberts court has ever done on voting rights I put it on par with Shelby County because I think Shelby County opened the door to Calay by unshackling

the south and basically removing those states with a long history of discrimination from federal

oversight so I don't think you can overstate how Shelby leads to Calay because once you basically gut the heart of the voting rights act you go with what's left you cut off the rest of its limbs and

“that's what they've subsequently done in terms of the immediate electoral impact though Calay is worse”

than Shelby County because it took a while for states to change voting laws in the wake of Shelby County and to some extent you could organize against them and there were still tools in some cases to fight some of those laws like the voter suppression law North Carolina was blocked by the court's under section two now when states are just gerrymandering to eliminate these districts it's very hard to out-organize something like that and we are quite literally going 40 or 50 years backwards

in terms of districts that elected the first black members of Congress no longer existing in a matter of days and so that's why I feel like Calay and Shelby County to me are the twin horrors of the Roberts court and really they go together and effectively destroying the country's

most important civil rights law but also that the immediate impact of Calay is more dramatic than

of Shelby County I think that's right yeah I mean I just don't I because because Shelby County

as a result of Shelby County and some laws did go into effect it would be like a Texas law

“which you did that day yeah gun permit but not a student idea when in effect that day but I mean”

they just the idea that all of these states were ready to go with these districts eliminating

black representation that they had no second thoughts about doing it that they could argue

with a straight face that they are essentially remaining historic discrimination when they are gaging in that very kind of historic discrimination you know and we're hearing a lot of things a lot of rhetoric that that echoes the Jim Crow era I mean when the Mississippi governor says that Benny Thompson's reign of terror is over in Mississippi I mean that reminds me of the language that we heard segregationists whites use about black office holding during reconstruction I mean

it's it's really kind of just alarming I mean it just kind of if you needed a rejoinder to elitos false claims of racial progress the events of the last week where these majority black districts have just been wiped off the map in a matter of days to me is the best evidence that the country has not made the progress that elito would like to claim absolutely okay we want to just briefly ask you maybe about one final development which is these developments regarding

Virginia so right listeners know that after the Virginia Supreme Court on this fourth revote held that that states effort to redistrict to kind of counter the partisan redistricting effort that Texas initially undertook and also California responded to the Virginia Attorney General is asking the Supreme Court to intervene arguing that both the Virginia Supreme Court rested its decision on a mistaken understanding of federal law and also that the Virginia Supreme

Court basically took from the legislature a power that should belong to the legislature to regulate

federal elections so that is language from the more versus harbor decision that kind of largely rejected but didn't entirely close the door to this so-called independent state legislature theory something that Leon I have written quite critically about this theory actually West Virginia cited our piece in their amicus brief to the Supreme Court in this Virginia case urging the court to adopt a narrow view of independent state legislature theory I'm sure they'll stick to

another cases was an unexpected side Asian and not quite properly and it is quite short I mean this

“is the rear instance in which I yes I mean I think it's I guess I'll just ask Ari do you”

feelings about Virginia's effort to get the Supreme Court to intervene here just given everything that we have been talking about about the robbers courts track record and sort of current objectives when it comes to regulating the process of democracy in this country like is there anything good that can come from Virginia asking John Roberts to step in? Well I mean they're clearly not going to step in so I it's sort of like a mood point like the robber's court the same one that just put

its thumb on the scale of the midterms to help Republicans is suddenly going to allow Democrats to put in place a map that would help them pick up four seats I mean that's ludicrous especially in light of clay I mean I think the Virginia Supreme Court decision was wrong but probably the way they're trying to rectify it is also problematic in terms of what if we then got like this sweeping independent state legislature argument that then Republicans could weaponize in the

“future I think that's extremely unlikely as you guys know I imagine they're just going to dismiss”

it with virtually no explanation like they do with all these cases I will say though there's something else I wanted to mention about Virginia that I want you guys to take on the fact that the court retroactively nullified in election in Virginia is making me very nervous about November and how courts might adjudicate the outcome of the 2026 election and whether they're going to use minor

technicalities to just avoid elections outright because to me basically it was in minor technicality

they were arguing over in Virginia and a lot of people think the court got it wrong but even if you think the court got it right there's in a world in which you can imagine them saying this was a violent a technical violation of the Virginia Constitution but we are not going to avoid an entire election because of it and I just look at what North Carolina did in 2024 where they tried to overturn the state Supreme Court race kind of similar in terms of irregularities similar on successful

there yeah successful in that two North Carolina courts sided with the Republican challenger before the federal court stepped in so I view the Virginia case as bigger than just a redistricting dispute I view it as an example of a Republican-dominated court basically overturning in the election and I'm extremely concerned about the precedent that could set in November no I agree completely it's something we talked about when we talked about the Virginia decision it was actually

election but right like courts aren't supposed to invalidate elections after the fact and this is normalizing that and I worry what it could pretend completely and there was like similarly just totally hackish behavior by the Missouri Supreme Court I mean Missouri had like Virginia a prohibition on cherry mandering and also organizers submitted 300,000 signatures to block the cherry-metern map that was past last year was should have just suspended it all together

for 2026 the Missouri Supreme Court issued a ruling hours after oral argument they didn't ask

“any questions I mean it was much like what the Roberts Court did in Alabama so I think you could”

literally have a situation where the U.S. Supreme Court intervenes on behalf of Republicans in Kalei to give them more seats Republican-dominated states supreme courts in Missouri in Florida intervenes on behalf of Republicans to give them more seats despite prohibitions on cherry mandering in those states and then the one state where struck down is Virginia where it's approved by the voters I mean I just have such a hard time justifying that under any kind of logical principle

of fairness yeah well I think we're going to continue to search for any logical principle of fairness that can explain the conduct that we have seen in recent weeks and months we're going to have

to leave it there Ari Burman always great to talk to you thank you so much for joining us today

great to see you guys thanks so much for having me hopefully it was somewhat therapeutic although I think it's going to be more rage inducing for more people um but you know what so we have that rage

“and we just have to figure out how to channel it um I think that's just where we are before you go”

when it's to ground and make recommendations with us sure yeah let's do it maybe we can find some right there okay that's good I'll end where we started with Melissa as yet again at New York Times best seller um also this last week was the golden age of skotes on TV our at least like a little a couple of like little moments of joy SNL like had a great sketch that featured Brett Cavanaugh,

Pete Higgs-Eath and Cache Patel check it out if you haven't seen it john Oliver had an incredible

segment on the shadow docket um also my CTV uh Jamel Bois this room court has put us in a dangerous place was a great column and finally the night first amendment institute has a new podcast um hosted by mod of co-sla and Katie Glen Bass and the first two episodes with a Kimlin Shepley and Larry Lessig were very very good I forget lorrying without law maybe is what it's called um anyway I'm psyched to continue checking out this new law podcast and I recommend it to all of you.

I would plus one to the skotes TV if you didn't see the SNL cold open you absolutely have to just the best um and in that john Oliver segment he both sites Steve Latic and also identify Steve Latic as his son so again definitely watch it uh what also plus one uh Melissa as yet again a New York time bestselling author making the constitution great again uh Charlie Xiex released a new single rock music and I'm hoping that that portends more additional music finally as we were

recording we learned that Alito fixed the previous typo in his descent alliance for hypocritic medicine with actually a new typo so this one alliance for hypocritic but just with one p not to medicine so there is a mole in those chambers there must be I know the back signal it has then it has then received uh keep trying Alito all right are you ready Alito bitch Alito but one of the only good things that has come out of the destruction of the voting rights act

as people seem to be reading about history again and uh digging back into books um so I would

“just recommend the work on reconstruction I think that it is more relevant um then ever i mean”

Eric Foner's book is obviously a great introduction to this the work of um David Blight as well so I would um recommend those two things um we put out just to plug my own work we put out a very cool like three-minute explainer on john robert's 40-year history of dismantling the voted rights act so you know if you don't want to read my book give us the ballot or other other exhaustive histories of this you could watch the uh three-minute video on motherjohns.com it had 600,000 views on

YouTube so I was at least a little happy about that amid my uh misery and uh for a uh respite from the Supreme Court I am very much enjoying my New York next dominating the NBA playoffs and I hope it continues in the Eastern Conference Finals. Amen and I will continue to plug your on book

Ari's give us the ballot is also essential reading so put that on your list too.

Now stay tuned for Melissa's interview with Kenji Aschino and David Glasco about their new book

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Okay, shifting gears. Listeners, if you have been marginally sentient over the course of the last year, you'll know that the Trump administration absolutely loves DEI. Well, a particular kind of DEI. The administration loves elevating mediocre dudes, that's the D, X husbands, that's the E, and idiots, that's the I. It is, however, less enamored of the old fashion brand of DEI, the diversity equity and inclusion kind, that was aimed at equalizing opportunity and ensuring

access for those who historically had been excluded from such opportunities. So, let me take through a list of some of the highlights of the anti-DEI impulse in the Trump administration. The administration has promulgated executive orders that are aimed at rooting out DEI in the federal government. It's EOs targeting various law firms have cited the use of DEI in hiring as among the firms' various offenses. When it is entered into agreements with colleges and

university, the administration has extracted as a condition for the restoration of federal funding, a pledge that the colleges will end the use of quote unquote illegal DEI. And more recently, the DOJ's Office of Civil Wrongs, excuse me, civil rights has announced that it will begin prosecuting corporations and other entities that engaged in so-called DEI under-extent federal fraud statutes. To be very clear, the administration is not alone in its antipathy for DEI. In fact,

constitutionalism that treats anti-discrimination as a species of discrimination.

“The court's decision SFFA versus Harvard was limited to the context of higher education and,”

as you know, it ruled that you could no longer use race in a limited fashion or any fashion in higher education admissions. But critically, that decision was limited to higher education. Nevertheless, that has not stopped those opposed to DEI from marshalling the logic of that opinion to undermine equality efforts in other contexts. Now, three years after SFFA, and just a year after the Trump administration's assault on DEI began forming, it seems like it's an

especially appropriate time to take stock of all of the damage and consider the future of equality. And to do that, we are joined by two very special guests who have spent much of their professional lives considering these very questions. Kenji Oshino is the chief justice or a war and professor of constitutional law at NYU School of Law and the faculty director of NYU Law's Meltzer Center

“for Diversity Inclusion and Belonging. Also with us is David Glasgow, the executive director”

of the Meltzer Center at NYU Law. They are both my NYU colleagues and I am so delighted to have them here on strict scrutiny because in addition to all of these amazing things, they are the

authors of some amazing books on the question of DEI. Their first books say the right thing,

how to talk about identity, diversity, and justice was a tour de force, and they have followed that up with a new book called How Equality Wins, a new vision for an inclusive America and it is out right now. Welcome to the show, Kenji and David. Thanks so much for having us Melissa. Thank you. We are so glad to have you here because we are in a world and we have seen all of the damage and I have one question. How did we actually get here? I still

remember 2020 when the killing of George Floyd in Minneapolis sparked what some have called the Great Awakening and it seemed like DEI efforts went mainstream. Everyone was thinking about DEI corporations were adding DEI officers to their rosters. Now it seems that DEI is dead. How did

“everything change so quickly? Well, so I think you nailed it in your introduction where you mentioned”

the students for Fair Admissions case against Harvard in 2023 because that's really where this story begins. Oftentimes we will get very caught up in the last year that we have had with the Trump administration. But as we both know, the administration doesn't have the power to change the law. It only has a power to enforce the law. So the real service that the SFFA decision did to the Trump administration and not to DEI was to embrace this colorblind vision of

constitutionalism. I'll put colorblinded in quotes there and allow the administration the running room that it needed to enforce civil rights statutes against historical beneficiaries namely people of color and woman and the like. So what is the provenance of this colorblind constitutionalism? And I love that you lay the blame squarely at the feet of the Supreme Court because as you know on strict scrutiny that's exactly where we put the blame over and over again.

So I will just take this as an indication that you believe as we do that we are always right.

Certainly about the court in this respect. But where is the court getting this idea of colorblind constitutionalism? And what's the tension between its earlier jurisprudence that seem to take a different hack around this question of equality? So for for decades the Supreme Court interpreted the equal protection clause and equality statutes according to what we call the anti-subordination view. And the anti-subordination view is contrasted with the anti-classification view which is what the

court embraced in 2023. So the anti-subordination view says classifying on the basis of race is not in and of itself problematic because sometimes you classify for Nvidia's purposes like Jim Crow other times you classify in order to remedy Jim Crow as in the case of affirmative action. What the Supreme Court did upending 45 years of jurisprudence in 2023 was to toggle over or from the anti-subordination view to the anti-classification view saying any use of race.

For whatever purpose is presumptively invalid and will be subjected to the highest form of judicial scrutiny. And it's only a matter of time. In fact, it's hard to start to do that before it ports over that equal protection understanding to statutes like Title VII that regulate the employment relationship. Just to land a plane on this about why it is so troubling that the Supreme Court's move from one to the other. I want to quote the late great Justice John Paul Stevens,

where he said that there is no moral or legal equivalence between Jim Crow and

and a welcome man. We've seen the courts shift in the whole idea of perhaps equalizing

“opportunity the court has framed as coming at the expense of other people. White Americans,”

Asian Americans, and you all reject that in the book. I was actually surprised with the book

because, you know, I'm somewhat of a Debbie Downer on this podcast. I always see where the next

threat is coming from. Kate is not. Kate is our resident Susie Sunshine, but I'm definitely Debbie Downer. But when I read this book, I was kind of surprised that amidst this grim landscape, the book is actually quite optimistic about the future of equality. So David, why are you so bullish about the future of DEI and what you both call the broader project of equality, especially in the face of a court that seems absolutely adamant in rejecting this vision of

equality? Yeah, so we have a very similar dynamic to what you described between you and Kate Melissa, which is that I'm the Debbie Downer and Kenji is the eternal optimist. But we found our kind of middle ground equilibrium in this book. And the reason why we hold onto some degree of open optimism is that this is not the first assault on equality that has existed in the history of the United States. Right? I mean, we've been through slavery, Jim Crow segregation, internment, legalized domestic violence,

curvature and on and on and on, right? Same six marriage being illegal. And each time activists, lawyers, people who champion the values of equality and inclusion have fought against those injustices and moved this country forward. Now, that's not in my view of guarantee that there's some end

point in history that we're always going to make progress. It requires collective commitment and

resolve. But the fact that we have overcome much deeper challenges in our history gives me some hope that with the same level of focus and intention, we can do the same here. And, you know, if I

“take a step back from DEI, right, you mentioned that DEI may be dead. And I think you may be right about”

that in terms of the acronym DEI. But I think the underlying-- Well, it's only dead for certain kinds of DEI. But it doesn't prove that there's an idiot's very much a sentence. That is absolutely alive, yes. But my hope is that the actual underlying values of equality, American still overwhelmingly support those. Paul showed that Americans believe in fairness and in equal opportunity. It's still very much embedded in many of this country's major institutions. And so I think that if we

find creative ways of advancing those values that perhaps pivot away from some of the forms that

have come under such vicious legal attack that we can still ultimately prevail.

One of the things that you posit in the book is that those who have supported DEI certainly for the last couple of years have been a little short-sighted about how they framed their project and who they've included in their project. And you argue that it kind of big tent universalist approach to DEI would be more successful going forward that the folks who are trying to do DEI and equalize opportunity really have to be more thoughtful about who they include in their project and making

more room for a broader field here. What do you think they've done wrong in the past um specific examples? And why do you think this broader big tent approach will be successful going forward? I think it really goes back to what you think DEI is for and we think that it's for fairness. And so if you think that it's for fairness I think that our colleagues you know in the field whom we deeply admire have sometimes aired ignoring three different kinds of claims and those

claims are claims of enforcement, claims of symmetry and claims of extension. So claims of enforcement would be claims like religion where something is protected under civil rights law protected under the First Amendment of the Constitution. But DEI practitioners have often been relatively inattentive to claims made by people of faith for reasons that are probably to complex to go into here. But we're absolutely for including that within DEI. It makes me want to tear my hair out whenever

“somebody says oh your university does too much DEI and oh by the way you should be doing more”

to combat anti-semitism because they're like that is totally contradictory you can do. The second claim is a bit more controversial I think which is claims of symmetry which is to say that oftentimes what people say is that there should be symmetry in a way that I describe with the anti-classification view and we don't think that that symmetry should be reflexive but we also don't think that simply because you're on the dominant side of a particular social

classification that you necessarily should lose every single time. So take boys and men,

and secondary and elementary education, man, die by higher rates of deaths of despair,

“by suicide and the like. So I think we should really approach this like public health”

individuals and say we are going to go where the inequity is and if there's an inequity even if it affects a dominant group and we do view men to be obviously dominant but there are pockets within which that dominant group is suffering from inequities we should deal with that.

And then the third example would be claims of extension which is that there are many kinds of unfairness

within American society that DEI has been again relatively in attentive too. I want to think about first gen and a low socioeconomic status as to really core areas in which we could do much better. And so even at that kind of first-cut thinking of honoring these kinds of claims, you know, claims of enforcement, claims of symmetry, claims of extension, you're going to get a much much bigger tent than you had before and that can only be good for the popularity and the relevance

of DEI to all of us as Americans. So I see how expanding the groups that would be impacted by DEI would work wonders for how this is reviewed and accepted by the general population.

But doesn't approach that expands the lens of who is included among those who are the beneficiaries

“of DEI will that actually to track from what I think has been the historic mission to equalize”

opportunities for groups that historically have been excluded and those aren't necessarily men or Christian conservatives been women, LGBTQ people, people of color. What it to track from the mission to expand the tent in this way and how do you respond to those who worry that you're diluting the mission if you expand the lens? So I think there is a danger in that and to pick up on the analogy that Kenji mentioned of public health or are we sometimes likeness to a physician's approach

of going where the pain is, even a physician who welcomes everybody and goes where the pain is, can still do triage? They can still say, well, I'm going to focus more on this area of pain or this area of pain or this patient that's presenting to me. So going where the pain is does not mean that if say a white man comes forward and says, I believe that I've been discriminated against because I missed out on this promotion because of DEI that's somehow we need to say, oh wow, that's that's

really valid. We should care about the dudes, ex-husbands and idiots form of DEI. Right, you can still prioritize. The point that we're making really is just rather than a kind of reflexive opposition to it of saying we only care about groups, AB and C. We're taking a universalist standpoint of anyone who comes to us with a valid claim of pain. We're going to take seriously, but we are going to adjust or calibrate depending on what's coming forward. And if that means

that we're still focusing on to take the gender example, reproductive rights or the gender pay gap or, you know, domestic violence, sexual assault, all of the issues affecting women disproportionately, we think that you can do that while also caring about, for example, in a recruiting more male teachers in elementary school to ensure that boys have better results in schooling.

It's basically like being in an emergency room. If you come into the emergency room and your arm

is hanging off and someone has an ear a, you're both going to be served, but perhaps not at the same time and perhaps not with the same intensity. Exactly. At the beginning of the Trump administration, there was an unbelievably tragic, air traffic accident in Washington, DC, a commercial airliner collided with a military helicopter. And in the aftermath of that tragedy, the administration immediately blamed DEI, the idea that the pilot may have been a person of color

or a woman. And there was all of this renewed attention to the fact that the Obama and Biden administration had done a lot of work to diversify the ranks of those in the airline industry.

“As pilots, as air traffic controllers, etc. How do we talk about the question of merit?”

And how would you talk about the question of merit in this new landscape and in your more bullish view of what DEI could be going forward? I want to begin by perhaps being a bit of a polyena and saying that those kinds of claims seem to have died down a little bit. It used to literally be bridge falls down. It's DEI. Wildfire was very true California. It's DEI. And I think that the American people got wise to the fact that if we have this kind of mentality where if anything

that happens anywhere in the world, that we have to look at the chain of responsibility and command

blame it. When DEI set this right there. Yeah, well, not commenting on our secretary. I'll

“say that, you know, I think anyone can see that that is naked bias. If the idea is, you and I are”

professor of that and what you, if someone looks at us and says, oh, you're unqualified just because you belong to a historically protected minority, that is just naked bias. And so I think we have evolved slightly beyond that. But in order to truly get beyond that, we have to do just what you said, which is to embrace this concept of merit. And you know, another thing that makes me want to tell my hair out is when fellow travelers who are pro-D, I say, oh, no, no, no, we cannot

touch merit because merit is a very dangerous game to play and it plays into the hands of our opponents.

And our view is, yes, there are concerns with merit. We identify three. So merit can be extremely

subjective. You know, merit can be extremely instrumental. Like it seems like, you know, the only good that I have in the world is my productivity or my efficiency. That might be, you know, problematic. And the merit is often also unearned, right, that if I'm born into, as I was, into a middle class family with all kinds of economic advantages, and I didn't earn any of that with regard to merit. But, you know, again, you know, I'll be synoptic here because we don't have time to go into it.

But our answer is, "Mend it, don't end it." We recognize all three of those concerns, but there are ways of refining the concept of merit so that it can be used. And if we don't use it, then our opponents will win. It's as simple as that because whichever side gets merit on its, you know, side is going to win this war of ideas. So if we say, as we do, our desire is for the most meritorious person to win. And we want to eliminate all of the headwinds, all of the biases,

conscious, or unconscious, as Chief Justice Robertson, self-sat and students for fair admissions, eliminating race discrimination means eliminating all of it. We would love to take him out as word and say, "Let's eliminate all the bias," and then let's have this fair competition of ideas based on merit. So I love the way that you framed this. I am often very frustrated with the discussion of merit and the contacts of DEI efforts. I was especially concerned in the wake of

the SFFA decision when America first legal Stephen Miller's outfit issued those letters to

institutions of higher education, including law schools saying that we're going to be monitoring you to ensure your compliance with SFFA versus Harvard. And I remember teaching the case to my students and showing a copy of that letter and asking, "How will Stephen Miller know if a law school has been compliant? What is the measure of compliance for these purposes?" And, you know, eventually a number of them said, "Well, it will be a diminution of the number of black and brown

students that are admitted each year to the school." And then that poses the question, "Is this a world in which we just cannot contemplate the prospect of any person of color being admitted?" Because that's not really about merit. That's actually about racial hierarchy and racial supremacy. And so sort of teasing out what merit is from the way merit has been

“co-opted and marshalled by those opposed to DEI. I think it's a really important part of this.”

And I don't think it's going to be easy to be able to do that. I think it's really embedded right now. Oh, absolutely. And the tell, of course, is not just what you say about the diminution of, you know, people of color in these institutions, but also the people that they're appointing. I mean, having a professional wrestling executive as the head of the Department of Education or a weakened TV host as the head. Hey, hey, hey. Let's not malign. We can't see you.

Well, when you're the secretary of defense, Melissa, then we can definitely have that conversation. But yes, I mean, they're not- The military uniforms are going to be lit on my watch. Trust. But, you know, they're not engaging in merit-based hiring. And so we divert an entire chapter of our book, which we call reveal the stakes to really unveiling do the other side really believe in this

“colorblind meritocracy that they claim to believe in or is there something more sinister going on?”

And so we have a few litmus tests to help you figure out whether you're dealing with a good faith critic of DEI who believes in merit or if you're dealing with someone who really just wants to bring back old school racism, sexism, homophobia, and the like. And so one tell, of course, is what they say in private and there's been a great New York Times expose. They're on this showing that a lot

But another tell is, are they consistent in fighting for a quality no matter which group is being

protected or they only seem to care about equality when it's a dominant group that's being protected or when they can drive a wedge between marginalized groups. So affirmative action is a good example of this where, you know, opponents of affirmative action would say we're really motivated by a

“concern for anti-Asian discrimination. That's why we're doing this. But could they point to a single”

other instance prior to that where they had fought against anti-Asian discrimination or was it only in order to drive a wedge between Asian Americans and black Americans? Or similarly, their activism around women's rights and protecting women's athletics. They only seem to care

about women's rights when it involves marginalizing trans individuals in every other context they

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make that we haven't talked about is that you argue that we need to shift from a kind of time one, D.I. Focus, which was about lifting up groups that historically had been marginalized to leveling, which I assume you mean sort of making sure the playing field is one where everyone regardless of the advantages or disadvantages they bring to the table can thrive and be successful. So, how do you get institutions like corporations and universities and

foundations and nonprofits in this moment to buy into shifting from the uplift, which is clearly presumptively unlawful, now at least for some in the administration, to moving to

“this leveling platform. Is that an easier self for them and how do you pitch it to them?”

I think it's so easy because it's legally absolutely safe and it's politically very, very popular.

The example that I always give Melissa is the orchestra screen study, where in the 1970s,

5% of the top five symphony orchestras were women that number jumped by the end of the study in 2016 to 35%, which was where remarkable increase in a very short period of time for anyone who works in this field. And the fix was that they made everybody auditioned behind a screen so that the gender of the person was not discernible to the person who was judging them. So, they could have approached it differently. Right? They could have approached it by saying

lift up. We're going to engage on a front of action for one man and we're going to give them an

extra point or an extra bump and give them a ramp up to this playing field. They didn't do that. They said no ramps, but the playing field is going to be absolutely leveled because we're going to impose the screen if you can't discriminate between two people, you can't discriminate

“against one of them. So that orchestra screen study, I think is a really good example of how powerful”

leveling strategies can be even when lifting strategies are unavailable to us. I do have a colleague, I must admit one of our colleagues, Melissa. Which means I have a colleague. Exactly. If you mention the orchestra screen study one more time, I'm going to throw a case book at you and I said, you know, why do you say that? And you said, well, because I can't use it. Like sure, I can blind grade my exams. But if I want to supervise a student, I have to meet

that student. So give me something that I can actually use because this orchestra screen study is a very limited value in my environment and most white collar professional environments. And the good news is, as we say in that chapter of the book, there's a whole litany of ways in which you can engage on leveling strategies even in those professional environments. So those could include, you know,

“anonymized assessments of things like, you know, exams. Those could also include structured”

interviewing. We all know that we have similarity bias like, like, like, like bias. You can cabin that if you ask all the same questions in the same order of all candidates and score them in real time. You can also do bias audits to make sure that the things that you are doing are not themselves imposing kind of inequity in the playing field. And a really good example of that would be my buddy, Charlie Correll, who's spent many years of her life looking at performance

reviews. She's a sociologist out at Stanford. And what she says is, look, Kenji, when I read your lifting to leveling analysis, I thought, well, on the one hand, I opposed SFFA, but the silver lining of SFFA if there is one is that it may push people towards the leveling work that you describe, and the leveling work is a more systematic work. So she said usually when C-Sweeds

“or exactly the committees have not enough women on them, they just pull up. They lift up a woman”

who is qualified. So that's great for that woman. That's great for that board. But it isn't great for the organization as a whole because the other inequities, which affect every single woman in the organization are still in place. Whereas if you look at this performance review study, we can show beyond Covell that women are graded only on performance and men are graded on some

admixture of performance and potential, which always advantages men. And so if you actually

remove that bias from all through the organization, which is strategies to do, then you can actually make life better for every single person within the organization by making it more fair for all. What sounds like you're advocating for truly structural reforms, like deep infrastructure or work within these institutions, the kind of thing that we were talking about in 2020 when we were talking about these questions of systemic bias, whether institutions were infected

with bias from within. So it wasn't about cosmetic changes. It was about actually being very introspective about how our organizations were structured and the way that bias was sort of baked in. Exactly. And this is another reason to be hopeful, which is that if we take this moment of crisis for DEI and we decide let's do this deep structural work of picking apart all the systems within

our organizations and reconstituting them to be more fair, that may ultimately result in a more

effective form of DEI than the much more kind of performative bandaid solutions that some organizations were adopting after 2020. Let me end with a question. Again, because I am a Debbie Downer, but we are trying to be more uplifting in 2026. So you've argued in the book that quote, "the fight over DEI is a fight for the identity and soul of the nation." We've seen a lot of evidence of the soul of the nation over the last couple of months and it's not a great look. What do you say to

those people who feel hopeless right now? I would ask them to take a long view of the history and character of this nation. So as you know, this is all I because we both teach constitutional law, you know, the Constitution is really a story about increasing diversity, equity and inclusion. And so the country is founded by a very small group of property, you know, white men, and every generation has struggled to expand who counts as part of we the people

to overcome those historical status-based exclusions from who actually mattered right in this

amendments is doing that for race. I think of the 19th amendment as beginning to bring women

“into the polity as well as, you know, for a second, third, fourth wave feminism. I believe more”

recently, right, title seven of the Civil Rights Act, you know, and, you know, a burger foul and Lawrence is bringing LGBTQ+ individuals within the polity, the Americans with disabilities act,

et cetera, et cetera. So the arc of history has really been one where the trend line has always been

for inclusion. And there's no reason to doubt despite the fact that things look very grim right now that in the long run, this will not continue to be the case. And the final kind of point that I'll put on that is a purely demographic one. So we live in a country that is soon going to be a majority minority nation based on race that is already true of the under 18 cohort where whites are minority of the population in that cohort. Since 2019, I'm a majority of college graduates

are women in this country. So the most desirable employees are women. And then most startling for me, 25% according to Gallup, you know, not HRC, not some advocacy group, but 25% according to Gallup of generation C, self-identifies this LGBTQ+. So in a nation that is as heterogeneous and as diverse and as multicultural as that, how can we hope to survive much less thrive if we don't have the capacities to work, to bond, to love, for care for each other across different.

“And that really is the work of diversity equity inclusion. That's why it's necessary. And that's”

why it will always be with us. The book is called How Aquality Wins a New Vision for an inclusive

America. It is practically minded, beautifully written, and absolutely necessary in this fraught moment. And it's authors, Kenji Yoshino and David Glasgow are two of the best thinkers on these questions. And we are so glad that they joined us today. David Kenji, thanks so much for sharing this important work with us. Thank you so much, Melissa. Thank you, Melissa. We've covered the fallout from Louisiana versus Kelley, but the latest runaway country looks

at what comes next. Host Alex Wagner talks with representatives Suha's supermanium about

“Democrats plan to respond after a major setback in redistricting. Then Stacey Abrams joins her to”

break down the Supreme Court's cutting of the Voting Rights Act and talk about why abandoning core values is just not the answer. Listen to runaway country every Thursday wherever you get your podcasts or watch on YouTube. Thanks again to Kenji and David for that great conversation, and we will see all of you next week. Strix Whitney is a Crooked Media Production, our show is produced by Melie Raul and Michael Goldsmith. Jordan Thomas is our intern.

Our team include Matt Dogrope, Ben Hethko, Johanna Case, Kenny Mothet, Eric Shoot, and our music is by Eddie Cooper. Our production staff is proudly unionized with the writer's Guild of America East. As we all live through the chaos of another Donald Trump presidency, it can be easy to lose sight of his most troubling legacy. The U.S. Supreme Court has reshaped the country's

legal landscape on abortion, guns, religion, and war. In Slate's new season of Sloberne,

we're taking on Trump's first Supreme Court pick. He is the most unpredictable vote on this

court. Sloberne, becoming Justice Gorsuch. Out now, wherever you get your podcasts. As best as you can, you can see a great test. He will have a cheese hit. Cheese hit. Now, the greatest test. Call number 18. Call for a Casembaugh Ablaut's racist union for it. Just as long as the effort has changed, we'll have the final decision on the action of the cheese hit.