Is SCOTUS Letting Trump Meddle in the Midterms?

It's back to school season, and this year 5 million children across Texas are going to be greeted by the 10 Commandments in their classrooms.

Yes, you heard that right.

“Texas politicians passed a law requiring the 10 Commandments in every public school classroom,”

forcing their religion on every kid in those schools. 28 families in Texas supported by Americans United for Separation of Church and State are taking the fight to the Supreme Court. And they need you to amplify their voices before the Supreme Court gets a chance on this case. And we all know what the fifth circuit did. Obviously, they let Texas get away with all of this.

They're going to go up, but we're going to fight to get him taken down. That's Texas Public School Parent Ted Low. Ted and Rebecca Low are an interfaith couple. Ted is Jewish and Rebecca is Christian. And their kids are in Texas Public Schools. The story they tell in this video is moving, and we hope everyone hears, and shares it.

Look, there is a human cost of Christian nationalist policies,

like these 10 Commandments laws, and the decisions the Supreme Court hands down. Every child deserves access to public education, where they aren't subject to state and pose religion, or religious instruction, or coercion. Public education is supposed to be open and available to everyone. It's supposed to foster pluralism, not one specific religion.

Visit AU.org/10C to learn more about this case and how you can help join the fight to protect Church State separation. We talked a little bit about this case on our regular episode last week, but there's so much more to be said, and to learn about the people who are fighting back. As a chief, you got this place forward.

It's no joke, but when I argue, man argues against you, a beautiful lady's lack of tears, 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 for my next. Hello, and welcome back to strict scrutiny. Your podcast about the Supreme Court and the legal culture that surrounds it. I'm Kate Shaw.

And I'm Leo Littman. Which means you have two of your regular hosts here today in the summer rotation, and don't worry all three of us, meaning the two of us plus Melissa, will be back together very soon. But for today's episode, we will discuss some legal news.

Definitely that you, kind of the news, mostly focusing on the Supreme Court's atrocious shadow docket order on the president's wildly illegal executive order concerning elections and absentee ballots. After that, we're going to introduce our next bonus series, which will start this upcoming Thursday. That's right, as our attempt to take the edge off the fact that summer is done and follows here.

Every Thursday in September, we're going to have a bonus episode on Supreme Court reform. Each episode will focus on one particular reform in death. We're calling it hot, scotous reforms in September. So please be sure to check those out. I at least, I'm really excited about them.

Are we going to make hot, Supreme Court reform September happen, Leo? I don't know, that was my effort. This is a bit of a mistake.

“Yes, well, all of you need to help us out.”

And today, we're going to motivate that initial installment, that particular segment by sharing a conversation that Leah had with Roy Cooper, who was running for a Senate in North Carolina, and who will talk about how the Supreme Court has influenced his race. Then you'll hear Leah talk with Steve Lottick about one kind of scotous reform, and that is

docket reform. So that will give you a taste for the series, which will then unfold for the rest of the month. Also, keep the t-shirt that Leah and I are both wearing, can you see it? Can you see it? This is how you make hot scotous reforms to our hot end.

I feel like maybe we need to catch up with sleeves. Well, that'd be more, and my like teenager would probably also trim it to make it like a crop top, which you can think we're both going to show you. Yes, definitely. Definitely.

So the t-shirt that Leah and I are both wearing, we're going to need a bigger court, cute, comfortable, pick it up. It is available in the crooked store. We will have a link to where to buy it in our show notes. It's a great shirt, but more importantly, it's a really important topic,

and we're going to stay very focused on it for September and beyond. Yes, and one more thing before we get going, we want to hear from you. So we want to know what you like about the show, what you love about the show, and what you'd like to see more of.

“This short survey will help us better understand what matters most”

to strict scrutiny listeners, including your favorite segments, and what new content or experiences you might be curious about. Your feedback will help us think through the future of the show. So go to crooked.com/strictsurvey. It takes just a few minutes to share your thoughts with us, and thank you.

And if you hear my dog's thoughts in the background, I apologize.

She's a little bit more expressive than usual. I'm sorry if you hear an undercurrent of stress beyond just the kind of looming beginning of the Supreme Court term in Leah's voice. That's probably why Stevie's been under the weather.

“Okay, we're going to come back to crowdsourcing, right?”

Some sort of dog health questions, but in the meantime, as Leah mentioned, we're going to really focus today on the Supreme Court and the election executive order that Trump is trying to implement. So regularly listeners will recall that we talk to election law expert in our friend Rick Hassan about the absentee ballot/election executive order

when the government first filed its stay application at the Supreme Court.

During that conversation, Rick and Leah accurately predicted what the Supreme Court would do. So today we're just going to have there a number. [laughter] Just too.

However bad, you think it's going to be sometimes it manages in the execution to be even worse. And I feel like that did happen here, even though you did have the sort of number in broad terms, but we will describe. But before we do that, let's just maybe briefly remind listeners of the background

“and then bring people up to speed on the kind of dizzying array of”

very recent developments. Okay, so background. As part of the multifaceted multi-front attack on elections and democracy designed to lock Republicans into power, oh forever. Back in April, the president issued a wildly illegal executive order on elections

that purported to do a few things.

First, on absentee ballots specifically, it directed the postal service

to initiate a rulemaking to limit what kinds of absentee ballots will be delivered. Requiring certain bar codes and may be providing that the postal service would only deliver ballots in states that had agreed to certain terms for how elections would be conducted. The order also directed the Department of Homeland Security to establish a list of

citizens to send to states to determine eligibility for voting. And the order included a threat that maybe the postal service would in deliver ballots at all in states that didn't use DHS' list as opposed to the state's on lists.

“And just to be clear, the states on lists are sure to be far more accurate.”

So this was punishing election officials abiding by more accurate election administration procedures. Okay, we're not done now because the order also directed the attorney general to prioritize investigation and prosecution of state and local officials who allow people to vote who aren't authorized to do so

and allowing people to vote who aren't authorized to do so seems like something election officials wouldn't do, but the threat embedded

in this part of the executive order is basically holding the possibility

of criminal penalties over state and local election administrators to try to incentivize them to err on the side of not allowing people to vote even where those people are eligible to do so. Especially if the federal government might use DHS' less accurate lists to make allegations about who is and isn't allowed to vote 100%.

So multiple lower course blocked the executive order, mostly on the ground that the president has zero authority to regulate absentee ballots and how state officials conduct elections under the constitution states have authority to regulate federal elections. Congress can impose rules if it so chooses.

The president cannot, but attempted to do so anyway. As ever, the federal government ran off to Daddy Scotus after these lower court decisions and Daddy Scotus delivered for Trump and the Republican party with an evil cowardly procurium opinion that adjectives, string of adjectives probably suggest it was the work of one John G. Roberts

is my guess, but their procurium opinion blocked one of the lower court injunctions against the executive order after the Supreme Court's decision in that case, another lower court that had blocked the executive order in a different case, vacated its ruling, blocking the executive order in light of the Supreme Court's own order.

The reasoning in the Supreme Court opinion, such as it is, is basically, what's the big deal? This executive order doesn't hurt anybody. I mean, this Supreme Court can somehow with a straight face in one Wednesday, the president has all of the authority and in the second press say he just issued an executive order, but that doesn't mean anything.

That's not law. So no one can go to court to challenge it. I mean, truly that is what the court and I totally agree. This is obviously a Robert's production, even though it says procurium. But the claim that this order doesn't really do anything or hurt anybody is clearly contradicted by evidence in the record, which,

of course, the Supreme Court doesn't care about these days, but really should. And it also is contradicted by factual findings, specifically that the district court made, including that states were already diverting time and resources to prepare for the executive order to be implemented. And that some states had already spent millions of dollars printing

absentee ballot envelopes that didn't comply with the executive orders, demands, and thus might have to reprint all of those envelopes. Okay, so the district court found all of these things, but district court findings, the Supreme Court doesn't care, so it didn't even engage.

That I guess was a TLDR of the procurium opinion, but in terms of what else it contained,

“in addition to just declaring that the plaintiffs were not likely to be injured,”

and therefore didn't have standing, so the case couldn't be in federal court at all, it also said just in a belt and suspenders kind of way that the case was brought too soon, because who is to say what might happen because of the executive order, maybe nothing, or maybe only super legal things, that seems totally plausible. This aspect of it was also completely unhinged, so a mere mere two months ago,

the Supreme Court, in an opinion by John G. Robert's hand at the president, greater control over federal agencies, which the court insisted were merely just arms of the

president, so the idea that these agencies would just shrug their shoulders at the executive order

seems a little inconsistent with the whole unitary executive infection slash infestations, slash idea or theory, whatever it is, it's like we knew that she didn't actually read his opinion in slaughter because of what he wrote in Cook, and now we really, really, you know, he didn't read his own opinion in slaughter, and then add to that, you know, as justice took to my worst descent, noted, the federal government itself conceded that it might use a state's failure to rely on

DHS, Homeland Security's approved voting list, as evidence to support criminally investigating or prosecuting state election officials, so it may have once been the case that the legal status of this executive order and its directives were unclear, but in a world with the unitary

executive, especially when we're dealing with commands to law enforcement in DOJ, which the court

said are purely executive and subject to plenary presidential control, the E.O. directive in that

“world just looks different. Can I say that just, I think that's a really important linking of”

not just slaughter, the president controls everything the executive branch case, but also as Leo is just a looting to Trump versus United States, the president is immune, like forever and for everything, case, because there is a lot of really problematic, wildly problematic language, in that case, about the president's complete control over law enforcement, and I think this executive order has to be read in light of that decision as well. And somehow it gets even dumber because

two days before the Supreme Court issued this order, suggesting we couldn't possibly know what might happen because of the executive order, the Postal Service had already announced a rule that did the very things the executive order called for, which are illegal. And we just wouldn't even acknowledge this. The Supreme Court may not be expected to read both its own earlier opinions and rules issued by federal agencies in the very matter under review. That is way

too much to ask them. It's the summer. They're not even, they're also busy boys and I'm not sure Brett Kavanaugh can read. So a lot of complicating factors going on here. Speaking of things to read and people who read them since they can read, I somehow decided to make myself a dumber by reading the brief that was filed by the federal government to defend the Postal Services rule. The brief is insane. Like both, I mean, the rules and saying as is the defense of the rule. So the

brief likens the rule on delivering absentee ballots to Postal Service regulation of transporting cremated human remains and animal remains, as well as explosives. I am less of a massacre, so I have to confess I did not read that brief. But I feel like just from your description,

“that tells you a lot about what they think of voting. Exactly. Right? It's animal remains. Right?”

Or it's dangerous. Right? Right? Those that's, in a word, how they feel about participation in our democracy. Okay. So I think as is hopefully becoming clear, the Supreme Court's reasoning in this precarious opinion is also deranged because it is willfully blind, not only to the existence of a rule. It doesn't mention not only to its own prior cases, but also to everything we know about this administration. And specifically, that this administration does more wildly

illegal stuff in a day than we can possibly talk about on weekly, you know, hour and a half long podcast episodes. This administration is not operating in a normal, regular, orderly process. And so the idea that here of all places that this rule making would follow some totally legitimate and kind of normal procedure that would result in a carefully vetted and very legal rule is obviously delusional. And I think delulu is actually how you would put it. Exactly. And just like

to add a cherry on top, it cannot be the case that it is both so unclear how this executive order will be implemented and who knows nothing might happen because of it. And that it is an emergency, warranting extraordinary relief that the president can't implement the executive order because as a reminder, this is an emergency application. This is the shadow docket that is supposed to be

how awful and appalling and just craving and cynical the Supreme Court's intervention is. So

what the court did, Dave the administration, a win that is hopefully temporary and hopefully superficial. But it's a win nonetheless. And the court's intervention reinforced the president's deeply dangerous and destabilizing campaign against absentee ballots as well as the integrity of elections. And it allowed the administration to claim a quote, win for this wildly illegal executive order, which purports to give the president authority over elections that he does not have. At a time

when the president is laying the groundwork for undermining confidence in elections and questioning the results of an election. And a win even a temporary one on the executive order has a potential to move the overton window on the president's authority over elections, the integrity of our elections, et cetera. And as we talked about when we talked with Rick in this respect, the Supreme

“Court's actions in this case are, I think, deeply analogous to what they did in birthright citizenship,”

where there are two in the court's first encounter with a wildly illegal executive order, a

different one. The court handed the administration a procedural win, saying the law courts were wrong to block the illegal birthright citizenship executive order, the nationwide injunctions. And the idea that the executive branch is somehow injured and irreparably so, if it is told that it cannot do something that is wildly illegal is on its own a ridiculous concept. And then you add to that, the Supreme Court buying the administration's victim narrative, which emboldens the executive

further, because it's reinforcing this idea that it's a lower court's not the president that are overreaching and out of control. This also buys the administration time to potentially accomplish some of its goals, which in the birthright citizenship case meant buying them time to further destabilize the guarantee of birthright citizenship and manufacture arguments against it.

“Absolutely. And I think we will be, you know, feeling the consequences of that for many, many years.”

Here, the effects may be felt much sooner than that, because the delay in light of the fast approaching midterm elections means there is a very real potential to create chaos and uncertainty

about how those very elections and obviously critical elections will be conducted, which could

actually create problems in election administration and certainly could depress turnout. Otherwise Rick has mentioned, and it's important to add, mobilization can respond to these kinds of suppressionary tactics, and so it could be that people respond in ways that overcome whatever suppressive effect these interventions have, but that is not a reason not to be deeply deeply concerned. Okay, sorry, that was a long kind of ground laying wind up here is what has happened

most recently. So on Thursday night, a Massachusetts district court judge, Judge Talwani issued a new temporary restraining order. Okay, so this is in the new case filed after the Supreme Court's Monday night ruling, and the new case challenges the postal service order itself. The one that Lee mentioned actually had already been issued by the time the Supreme Court's order came down, but went unmentioned in that order. Okay, so the earlier challenge was to the EO itself,

this new challenge is to the order implementing some of the provisions of the executive order, and this new temporary restraining order restraines right blocks the implementation of this rule,

“and I think actually there are two cases consolidated before Judge Talwani, if I'm not mistaken,”

one brought by a group of states and one by a group of organizations led by the League of Women voters. So I think that is where we are right now, a temporary restraining order, in effect, as of Friday afternoon. As you mentioned, you know, there's a great right out at the election law blog that Rick runs, this disregard opinion I thoroughly enjoyed, it was extremely shady, you know, it was like, oh, you know, the U.S. Supreme Court in its order suggested that my

two early injunction might block the postal service from issuing a regulation. Nope, didn't do that. Also, by the way, guys, you didn't even mention the regulation that you, anyways, love that. So that is the current state of affairs, and I think it's safe to say there's a lot of uncertainty, because we're not sure what the Supreme Court will do here, creating this weird, shrodinger's executive order situation where the ostensible rules governing the upcoming

midterm elections are changing and still might be changing by the hour, you know, there was a period when the executive order was reportedly, in effect, and the postal service announced. It was, and then it wasn't, and who knows, maybe it will be again, and before the district court issued this subsequent order blocking the postal service regulation, North Carolina said, it had submitted its mail ballots to the postal service to comply with the new Trump rules for

the November elections. Again, kind of teeing up the conversation you'll hear later between me and

right how democracy and elections work on the ground in the upcoming midterms. And I think

“Justice Jackson also wrote a descend, just as such, in my or wrote one too, and I think Justice”

Jackson really summed it up perfectly when she wrote in her descend quote, "in the end, what makes today is that is the Supreme Court's ruling, so off base is the court's lack of situational awareness regarding this equitable judgment. It treats the government's day application as if the whole point is merely to demonstrate that the plaintiff states claims are not justifiable. Taking its eye off the ball, the majority misses the government's actual

objective to secure our impromotor for its effort to form a chaos ahead of the November elections." End quote. Yeah, it just brushes away some of the kind of procedural and legalistic overlay that a case like this often comes wrapped in and just like this is what is happening. This is what the government is trying to do and this is what is at stake and I really appreciated that. So we have no idea what the next couple of days or weeks will hold. I mean,

there I think is a very real and wildly concerning possibility that the court may have put elections between a rock and a hard place. So initially the Supreme Court said the challenges to the executive order were brought too early, but now we have a new challenge and they can't possibly take the off ramp of well, there's no rule to challenge and there's no actual injury.

“And that I think means there's a very real possibility. The court will say this sub-sequent”

challenge is too late, meaning too close to the election under the Supreme Court's lawless per sell case and principle, which forbids federal courts, at least in theory, at least when the Supreme Court feels like enforcing it from changing election rules to close to an election. Well, for kids federal courts from changing rules in a way that makes the election actually democratic and expands valid access to the Supreme Court changing and not prevented. Exactly

from obstructing it. Forgive me, that is actually the correct definition of the presel principle and law. Obviously, then what is so chilling about it is that if they're faithful to their own lawless principle, there is a real chance that they allow this wildly illegal executive order to go into effect, not because they can bring themselves with the straight face to say the present has this power. I actually don't think a majority of them even could do that all the two or three

of them, I sure could. But they might just say, well, it's just there's this principle out there and the order is there. Federal courts can do anything to change it now, even though the order is the thing that would be changing the status quo, obviously. But I don't know, this is a very, very scary state of affairs and even separate an apart from what might happen, when this case goes back up to Skoda's as it surely will, the original procurium order that we were just

talking about also contains some passages that might signal that some parts the executive order might actually be substantively okay, including the threat of criminal investigation and prosecution of state and local officials. So here's a concerning quote. The injunction reports to forbid the attorney general to implement the president's enforcement priorities as to those same states.

Again, echoes of the courts basically boundless conception of presidential power over law enforcement

from Trump versus United States. And yeah, I mean, that part, which is on its own super concerning. I think we're only not talking about it much because so much else in the order is insane. But even if none of the rest of it goes into effect, that alone would be an enormous problem. Yeah, and assuming the order blocking just the postal service rules stands or the Supreme Court lets it stand, you know, what happens to other parts of the executive order like these

directives to investigate and prosecute state and local officials? That is even if the court says, yes, you can challenge us rule. The injunction against it isn't too late, then are they ever gonna allow anyone to challenge the other parts of the executive order? I don't know. Yeah. And so we've covered a decent amount of ground, but Leah actually did a short YouTube

rapid reaction video to the order when it first came out on Monday night, aired on Tuesday morning.

“And so if you want to go a little bit deeper on some of what we're covering and also, you know,”

the profanity actually has been pretty light in the last like 20 minutes like there's definitely more in the YouTube version, Leah's version. So fire up YouTube if you want a little bit more depth and spice. And we also wanted to shout out other people really doing democracy's work, providing speedy, accurate coverage and translation of what the Supreme Court has done in this case. And so many others and that includes Chris Gidener at Lawdor, who did a great

write up on Monday night, our friend Steve Flodik, who you will hear from later on this episode at one first street. And also our friend, Cheryl and Iful, who's got just totally indispensable substack who wrote up a response to the course order Monday as well. Yeah. And she wrote something

that I just wanted to underscore. She said, quote, first, don't tamp down on the significance

of the court's action in this case and quote. So like even if the court ultimately doesn't allow this executive order or at least some of its parts to go into effect, like what they did here

or even more on what the administration may be the first circuit because this is a Massachusetts

“district court order that came down Thursday and then ultimately the Supreme Court does on this”

executive order and the litigation. Challenging it, I have a feeling we may be coming your way with more rapid response videos as circumstances require, so stay tuned for those. But in the meantime, let's move on to the rest of the week's developments. This took scrutiny as bought to you by the night first amendment institute at Columbia University. The September marks a quarter century since 9/11 and the inauguration of the global war on

tier. Many of us will be reflecting on the losses of that day and on how its legacy still shapes lives in New York across the country and around the world. To reflect on the meaning of these

events for the freedoms of speech and the press, the night first amendment institute is hosting a

two-day symposium, the Forever War and the First Amendment. The event will take place on September

“9/10 at the Lee C. Ballinger Forum at Columbia University in partnership with Columbia University's”

Simon and Junely Center for Global Journalism, Harper's Magazine, and the Columbia Daily Spectator. Join us to hear from leaving journalists, scholars, lawyers, and activists whose work is help shape public understandings of this era, including M. Gesson, Lydia Polgrain, Phil Clay, Steve Cole, Harry Kuntzrew, David Cole, Nicole Hammer, Azizrana, Prämthakar, and Moamado, Old Slawy. Registration is required, whether you're joining a person or watching the

lie stream, learn more at nightclumbia.org. That's night with a K. This episode is presented by Planned Parenthood Federation of America. If you listen to the show you already know. This administration, Congress, and the courts has spent the past few years making it harder to get healthcare in this country. And its patients who are paying the price, take the Supreme Court, to pave the way for states to exclude Planned Parenthood health centers from state Medicaid programs

in Medina versus Planned Parenthood. This undoubtedly violates patients' right to get care from quality providers that they choose. And last year the Trump administration and Congress defunded Planned Parenthood. Trying to shut down Planned Parenthood and block patients with low

“incomes from birth control, cancer screenings, STI testing, and more. That's why Planned Parenthood”

is fighting back, but fights like these take resources and supporters like you. No matter the size, your donation makes a difference. Helping Planned Parenthood meet this moment and protect patients' access to care, one and where it matters most. If you believe all people should get healthcare, no matter their income. Don't it now at PlannedParenthood.org/decent? Yes, so in other happy news, a Supreme Court justice appeared on a podcast. Maybe this is

why they didn't have time to read their previous opinions or the rule, but this is a good tool to suggest. It's like logging onto the mental context. Exactly. Exactly. Exactly. But this podcast appearance kind of gave an absolute middle finger to everyone who cares about Supreme Court ethics and integrity because Clarence Thomas made an appearance on Ted Cruz's podcast verdict with Ted Cruz. So take a listen to one of the clips from the first segment here. It's also an

opportunity to say you're one of the people who actually stands up, particularly at times when others seem to wither and I appreciate it. And more personally, when my wife and I were under attack for obvious reasons, you and Mike Lee and some of the other friends would stand up Senator Kennedy, etc. So I don't really appreciate that. Justice that is very kind of you and especially for you to observe that I stand up in the face of criticism and attacks. That is

powerful coming from you because you're someone who knows what that's like. I just want to say

I really did the TMS all at this time by listening to this even though you didn't know. I thought I was going to sort of do the massacist sort of dirty work for the team and I only listened to the first installment to do listen to both. I listened to part of the second and then I just turned it off. It's like I've done enough. I've done enough work here. But the clip you just heard would be Clarence Thomas, a very neutral impartial definitely not political justice of the Supreme Court,

thinking a Republican Senator Ted Cruz for defending Thomas when Thomas and his wife were "under attack" by which I'm pretty sure Thomas is using to refer to when he was being criticized for receiving luxury gifts including many undisclosed personal jet trips from a Republican mega donor and more generally having a billionaire BFF/benefactor in Harlan Crow. Yeah that was a wild moment. You know, Justice Thomas loves to talk about the unfair attacks that he has endured and so when

he sort of launched I've heard a lot of his bits before and so I thought he was going to talk

Hill disclose that he had sexually harassed her, but then he mentioned Ted Cruz and Mike Lee coming

“to his defense and so I was like, "Wait, that timing doesn't work." Oh, I guess he means”

the more recent unfair attacks around billionaire larges. But this is a wild conversation and I don't know if you felt this way Leia, but it's like he is such a fascinating figure and he's got so much both obvious intelligence and charisma and is such a profoundly broken and damaged and furious and bitter person and it's like it's genuinely moving when he talks about his childhood in object poverty and pinpoint Georgia. Like it really is. His memoir, my grandfather's son

was actually really, really good and Ted Cruz starts the interview by being like, "You wrote a great autobiography and that doesn't quite explain why Ted Cruz felt the need to also write a biography apart from maybe selling books." But also it's like we've said this before but like people will do a lot to avoid going to therapy and it just like there was rarely a person you will hear talk about themselves. And going on, Ted Cruz's podcast, that's part of that avoidance effort? I guess so.

Anyway, it was a wild conversation. Well, who knows, maybe Ted Cruz will get a free P.J. trip to Cancun out of this. Yeah, I totally possible. I mean, has he actually not? I feel like he's probably received one of those in his life, but pure speculation on my part in any event. The conversation, just the appearance at all on this podcast just felt like a real epic level of trolling and seemed to display without expressly touching the topic,

real contempt for people trying to push for ethics reform at the Supreme Court. Yeah. Okay, onward because we do have other legal news to cover. Last week, Leah and guest host Somal Travadi talked about the extradition request from Minnesota to Texas to have Texas extradite a former ice agent who had been indicted in Minnesota for firing into a home and then

lying about it. Well, there have been some developments because we have our first federal

district court ruling in that case and it sides with Texas, shock him because it's a Texas district court and a Trump appointee and the siding with Texas is in a completely sort of bullshit procedural way, which is basically by concluding that we don't know the Texas governor Greg Abbott won't comply with this extradition request, so the issue isn't ripe. Basically says the court, Abbott hasn't refused Minnesota's request to sign an extradition warrant. He just hasn't responded yet,

“that is different and so the case isn't ripe. Where, why do I feel like this logic sounds familiar?”

Yeah, using procedural. Oh, it's just a little too early who is to say what might happen and therefore let's enable some lawlessness. She bringing some bells, not sure where, where it could be coming from. But the court's reasoning is just odd or BS because the lack of a response is functionally equivalent to a no. It means the former ice agent is not extradited to Minnesota and in fact it resulted in the former ice agents release from custody since Texas law

only allows the detention for 90 days and then it just expires and it expired. Guy was released who knows, maybe he too took a P.J. trip to Cancun. Can't rule it out. And you know what Texas is doing here is I think like a real breakdown just in the idea of this is a union that we are a United States where states don't nullify the ballot enforcement of another state's laws and some sort of weird political bringsmanship, especially when we're talking

again about like conduct that occurred in the state that is actually trying to enforce its own law.

“Right, and occurred in the state is an important distinction between this effort which is a legitimate”

one and an effort by say Texas or Oklahoma have they both tried. I can't now recall but to extradite providers of medication abortion who aren't anywhere near their states in fact are in places like New York. Those are very different kinds of extradition requests. Then this one where Minnesota says this agent shot someone in our state can we please have him so we can prosecute

him entirely different. And it makes Texas basically a safe haven for federal lawlessness.

Totally Texas and you're not, you're not, you're not, you're not going to have to face justice wherever the misconduct allegedly occurred. Okay, a handful of other pieces of news, good bad and ugly. This first one pretty good. So we got an order in the challenge brought by the Department of Defense. I'm going to keep calling it that's cancellation of a contract with anthropic and in a nearly 60 page ruling a California district court held that the government had unlawfully

retaliated against anthropic for constitutionally protected activities. Here are those activities involved speaking up to caution about the ways its technology might be misused or abused. So just recall this dispute arises out of. And thropics seeking assurances from the Department of Defense that its AI not be used for fully autonomous weapons or for domestic mass surveillance which I gather, it had some reason to worry that it might be used for. This request was such an

with anthropic and designated them a supply chain risk, which I think is the first time the federal government has ever so designated a United States company. And it shouldn't require some kind of applause when a company stands up, you know, for its own bottom line because its been cut off from some enormous source of business, but given how much of corporate America has decided not to fight back in the face of the administration's lawlessness, I am glad that

anthropic decided to file a lawsuit and that they got this, you know, they not to this first win.

So this is going to move on to ugly. Last week, the four circuit throughout a $42 million

judgment that had been awarded to victims of torture in Iraq's Abu-Gray prison. This is a case that had previously gone to trial and resulted in a significant verdict and a war that had been upheld by the appeals court. But last week, that appeals court concluded that in light of the Supreme Court's decision from last June in Cisco Systems versus Joe, which gutted the alien tort statute, you know, they're the court said that victims of human rights abuses and

torture couldn't sue, right, a corporation that had allegedly hated and abetted the surveillance torture and abuse. The Court of Appeals concluded that in light of that decision, it would have to

“reverse its prior decisions and throw out the award. It's just awful and it's an important reminder”

that the harm inflicted by many of the court's decisions really only start when they are handed down and just multiply from there, like some sort of weird investigation. Totally. And speaking of the fallout from Supreme Court opinions, we need to flag some developments involving still for now, Fed Governor Lisa Cook. We're called that last June, the Supreme Court ruled against the Trump administration's effort to fire her by social media post. But the administration does not appear

to be letting that stand as the last word on whether the president has the power to fire Cook. So last week, Cook submitted a letter responding to the White House's latest indications

that it may move to fire her. They basically asked her to defend the series of allegations,

spurious allegations that she had engaged in mortgage fraud. She submitted a lengthy letter, sort of detailing and responding to each of the allegations against her, making clear just how absurd they all are. But given again, that the White House decided not just to cut its losses after scotus ruled against it and seems maybe interested in continuing to try to pursue her, I wouldn't be at all surprised if they tried to fire her yet again. It seems really clear that

the kind of process the Supreme Court said had to be followed in the case of removing an official like a Fed Governor is not satisfied by saying right as a letter. There has to be more than that. So even on the court's own logic, which definitely did not totally foreclose them trying again,

but even on the court's own logic from that cook opinion, I can't imagine that this stands as

like sufficient process to justify firing her. But I don't know. It feels as though they're going to take another run at her and so the case may be back before scotus are for long. Yeah, I'm speaking of our president, the poster. The president posted something where he purported to rank all in his mind past presidents in different categories. Obviously at the top is himself the greatest after that there was a category for great. The newer great, the

average, the below average and the failures. So observations about this ranking, Ronald Reagan is just

“missing. I don't know if you like forgot that there was like a famed rhino lia. That's why.”

Well, but like he put other you don't rhinos or if he views his rhinos, obviously I actually didn't have it. There was some Democrats who did. I mean even in contemporary sort of political terms who were like FDR was like in great I think, right? Yeah, so he was in great and then Clinton was in average. Obviously Biden and Obama are failures, but one of the ones that like or if you're appearing that stuck out to me is Andrew Johnson, the Confederates empathizing

president who tried to nullify reconstruction is listed as average. Well, you list he's as grant, union soldier is below average and it just makes you wonder what led to this ranking and what corners of the internet did he get this from? I mean I couldn't tell whether he was surprised by Andrew Johnson being average and not being higher or not being higher. This is like supposed to raise your mind. Right. So actually he didn't think he was successful in ending the reconstruction

quickly enough. Right, right, or fully enough. Yeah. Yeah. Okay, that's fair. I wondered with Grant, the reason that he was ranked below average actually had nothing to do with reconstruction, but maybe was that, you know, so there's all this sort of famed corruption in the grant administration.

“I think it turns out, you know, historians feel differently about this turnout is like a really big”

grant defender and it's like, wasn't really his corruption. It was like underlings he didn't

on the corruption letting him on their wings. Yeah, all the benefit. And so maybe a little bit more

“personal sort of griffed in corruption might have bumped him at least to the average category. I see.”

Just a theory. Yeah, no. It's plausible. Totally. So that is all of the legal news. We are going to cover this particular episode. Now you can stay tuned for my conversation with Governor Roy Cooper about how there is still some aftershock and blast radius from many different Supreme Court decisions that are playing out on the ground in North Carolina with respect to democracy and elections. And then stay tuned for conversation with Steve Flatic. And then after that, at the very end,

we will give you our favorite things. Stick scrutiny is brought to you by Smart Credit. Here's

something most people aren't told about their credit score. It's not just whether you pay your

credit cards, it's when you pay them. Yep, most people don't realize that. But Smart Credit's data experts understand how credit bureaus operate. So they created something called the best paid

“down date, builds around how credit reporting actually works. So instead of guessing, you get a”

personalized strategy that shows you what to do and want to do it to help you maximize your score. And that matters because better credit can mean lower payments and more money in your pocket. And this is where it gets interesting. You can see your full credit picture in one place, your score, what's affecting it. And if something needs attention, you can take care of it right there.

So before you apply for anything, a car, apartment, refinance, it makes sense to start with Smart

Credit. Who to smart credit dot com slash strict and try it for just one dollar. You may be surprised to see how many points Smart Credit estimates you can gain. That's smart credit dot com slash strict, results vary, cancel any time. Strix scrutiny is brought to you by Jolie. I swim for exercise, which means I don't need a lot of extra chlorine. Really any additional chlorine in my home shower. And the Jolie showerhead helps clean and purify water. This part of my skincare and

haircare regimen. Help guard against dryness. The Jolie showerhead installs in minutes and fits all showers. It's an easy way to elevate your daily routines. You can look and feel better, without having to try harder. You can think of the Jolie showerhead as like the foundation for good skincare or haircare routine because if the H2O isn't a go, then the routine is a no. Or maybe if the H2O is a no, then the skin won't glow. Anyways, Jolie will help you realize

how much a better shower can feel and perform with your water is actually working for you and not against you. Jolie's appearance will also give your routine a refresh. Jolie has a sleek aesthetic that makes a shower if you like a luxury spot or expensive hotel. Try Jolie risk free for 60 days by going to JolieSkinCoat.com/strict that's JolieSkinCoat.com/strict. Jolie is also available on Amazon. Hello everyone, with the launch of our Skoda's Reform Bonus series, again, hot Skoda's Reform

September. We wanted to motivate the conversation in that series a little bit, not that it really needs any motivation but just in case. So I'm going to spend a little time talking about what the Supreme Court has meant for the upcoming midterm elections and what the upcoming midterms and 2020-28 elections might mean for the court. And to help me with that conversation, I am delighted to be joined by Roy Cooper, the former governor and attorney general of North Carolina and the

future Democratic senator from North Carolina. Thanks for joining the show, Governor Cooper. Glad to be with you, Leah. Thank you so much. So as a Democratic governor of a purple state, you actually vetoed several Republican-supported bills that would have restricted ballot access

“and otherwise made the Democratic process less Democratic. Can you talk a little bit about that?”

You know, I think that often the Republican legislature was looking at ways to stop people from voting who they didn't think were going to vote for them. And there's unfortunately been a long history of those attempts in our state. It's fortunate that we've had the courts that have often stopped the worst of the worst. There was a four famous four circuit decision saying that they had discriminated against black voters with surgical precision trying to figure out when and how

black voters voted and then trying to restrict those ways to vote. We don't have the good court backup that we used to have now. So that's a real concern going forward. We've already seen this legislature and now our new Republican state board of elections to restrict Sunday voting, to restrict voting boxes on campuses. And obviously we have seen their handy work in extreme

where the representatives get to choose their voters instead of the other way around. And that's

not the way we should do things. I'll tell you, there's two things that I will work immediately on when I get to the United States Senate. One is overturning citizens united because of the amount of money involved in these races is unconscionable and it's got to stop. And secondly, finding

“a way to outlaw extreme partisan gerrymandering. I think those two things could help every day people”

by the policies that will be passed as a result of them being passed. And it'll also help say about democracy. That's for sure. Yes, no, it gives people more power by making the country more democratic. You mentioned the loss of the courts as a backstop and I just wanted to say a

little bit more about how that has really affected North Carolina. So the root of versus common

cause decision, the case that said federal courts can't do anything about partisan gerrymanders actually arose out of North Carolina. And what's the Republican legislator's effort to get away with something that targeted black voters with remarkable precision. And in the wake of Shelby County dismantling the preclearance process, that's when the Republican legislature passed that voter suppression bill that the federal court of appeals did say, you know, targeted black

“voters with surgical precision. And then when the Republicans gain control, the state's”

Supreme Court, that court allowed the legislature to get away with the voter identification law as well as, you know, it's partisan gerrymandering. But you also mentioned citizens united in money and politics and voter suppression and impeding ballot access aren't the only ways that Republicans with the help of the US Supreme Court are shaping the upcoming midterm. So one of the big Supreme Court decisions from the end of last term that got a little crowded out by some of the

other big decisions like birthright citizenship was NRRC, the National Republican Senate committee versus FEC, the federal election commission. Just as a refresher, that decision eliminated what were called party coordination limits. And that cleared the way for political parties to fork over money to candidates. And that allowed the mega rich to be able to pass more than $500,000 directly to candidates using parties as a conduit versus the $7,000 they were previously limited to

giving to a candidate directly. Roy, how has the courts demolition of campaign finance affected your race in particular? Oh, significantly, but I have to, you mentioned a string of cases,

“and I have to point out one that I think is really important because Noah Carolina did have the”

case in front of the US Supreme Court where that court had a chance to outlaw extreme partisan gerrymandering and it was a close vote. And they ended up saying that it's too subjective. And that's why they didn't do it. And that's not true. I mean, you can use standard deviation. I mean, you can look at ways that districts are drawn in a way where they are too extreme in their partisanship. And just have you know, briefly, Democrats controlled this date Supreme Court in North Carolina,

they found that under our state constitution that extreme partisan gerrymandering was unlawful. And we sent seven Democrats and seven Republicans to Washington. That's who we are, we're state. Yeah, we're a purple state. And then Republicans took over the court and overturned it. And now we're back to 10 to 4. I don't know what will happen this time, but that's just wrong on its face. This latest Supreme Court decision just allows more big money. It allows more billionaires

and the most wealthy people to get into the system. And with these joint committees now, that can be set up is virtually unlimited. It's to the amount of money that they can spend on these races already. It's unconscionable, the amount of money that is there. This gives them a new

avenue to just simply let the parties. And already, you know, the RNC has what 130 million,

I don't know the DNC is in debt. So my opponent, Michael Wattley, was the former RNC chair. So he's going to be first in line to get this money. And then another kicker, which I know you know about, is the fact that there is another case going on where the FCC said not only are these joint committees okay, but we're now going to require TV advertisers to give them the lowest unit charge, which can often be a big, so now that not only do the big money want to come in, they want to

discount while they're at it. So that money can go even further. That's right. So that case is going to go to the Supreme Court. And that will affect the small dollar donors who work really hard

we encourage people to go to roycooper.com. You can see my policy proposals, but you're going

also give us some help here to help us fight back against these, this big money that's now being allowed in more ways by the US Supreme Court. Really frustrating. Yeah, and just to link what the FCC is doing also to the Supreme Court, you know, the Supreme Court essentially ended independent agencies giving the Trump administration more control over what these agencies do. And now the combination of the end of party contribution limits and the end of independent agencies

have created this world where the RNC and other campaign committees can now spend all of this money

on your opponents ads and get a legally mandated discount while they are doing it. And again,

this is not democratic. It is allowing people in power to write rules so that they can stay in power. The FCC now is controlled by Republican Party, by the Trump administration, has no independence. How in the world would it just come up out of the blue and send a letter to television stations

“saying that you have to give a discounted rate to these new big money joint committees?”

I mean, just out of the room, no case sending a letter to them, this is what you have to do in clear violation of the law, because it limits the law limits it to candidate committees.

And John Ossoff and Sherry Brown and myself and some house members, we sued to say, wait a minute,

that's not what the law says. And the circuit court agreed with us saying this law is pretty clear, but now it's likely to go to the US Supreme Court. They're arguing some standing issues. Of course. Of course, black and white. And the discounts should be limited to the candidates who are limited in the amount of money that they can get, which is the way the rules should be. And this is the where our grassroots contributors can make a real difference in what the FCC and

the Republicans and the Trump administration are trying to do is to make their contributions less effective by giving the billionaires and the big money people, the very same discount that candidates now get. Yeah, no. That is just kind of wild. You know, this court, unfortunately, has a let's say a tendency to use the idea that no one has standing or no one is injured by this anti-democratic behavior to allow some anti-democratic behaviors of fingers crossed that does not

happen with the FCC challenge. But it's not just, I don't think, like the influx of dark money that is the result of the Supreme Court's decision. It's also what this dark money is doing. It's

“generating all kinds of shady and not in a good way, like borderline deceitful ads. Is it not?”

There's no borderline about it. They're out and outfalls. They're deceitful. Do they got attack ads running against me now in North Carolina on crime? One of the cases is a case that was in South Carolina. South Carolina by a South Carolina criminal who is led out of South Carolina jail, and that's somehow my fault. I'm pretty sure the Republican controlled legislature tried to limit your power, not give you additional power over South Carolina. That's if that's not right.

But it's so absurd. And the irony of it is that I am the only one in this race who actually prosecuted violent criminals and who actually worked to keep them behind bars. But they have no relation to the truth and they're able to put these hundreds of millions of dollars. And if you say the same lie enough, then people can start believing it. But you know, you talk about being tough on crime. My opponent Michael Wattley who, you know, when I asked why he was running, he said because

of the president asked me to and it's clear that he will do and say whatever the president tells him to do and say regardless of whether it's good for the people of North Carolina. But he says

“he's tough on crime. Yet he appointed to an important Republican Party position, a convicted”

child molester who served six years in prison for his crimes was on the sex offender registry. And he did this over the objection of a number of Republicans who said we can't have this disposition allowed him to be in contact with children and young people. And he did it because

I think that's the real soft on crime when you're talking about Michael Wattley.

Yeah. Well, listeners, hopefully this has been an informative conversation about how the Supreme Court's anti-democratic hijinks are already affecting democracy on the ground and also highlights the importance of ensuring the Supreme Court and the Republican control legislator don't get away with these anti-democratic hijinks. Governor Cooper, thank you so much for taking the time to join the show. We really appreciate it. Thanks, Leah. All the bench, okay?

“Thank you. And if you want to learn more about how we can possibly fix this Supreme Court”

and what it is doing to our democracy be sure to stay tuned for my conversation with deep static on Supreme Court reform which is next. Strix scrutiny is brought to you by Quince. Back to school, back to school, which means it's time to get some quince. Those are the rules. Quince specializes in everyday staples that work harder, like their ultra-soft, organic cotton teas and premium

Mongolian cashmere sweaters. Their versatile, timeless, and transition seamlessly from a casual workday to dinner out. If you're still hanging onto the same worn-out basics, Quince makes it easy to upgrade. The premium denim and tailored chainos, from just $60 with a kind of perfect fit, structure, and high quality fabrics you'd expect from a luxury designer brand. Everything at Quince's price is 50 to 80% less than similar brands. They work

directly with ethical factories and cut out the middlemen, so you're paying for high quality not brand markup. It's still in that hot back to school season here in Michigan, which means my favorite go-to piece is still the stretch washable silk. Seriously, it's such a life saver during the busy back to school season to have washable workware. And it's not just clothing. Quince has become a go-to for everything from hotel quality bedding and bat essentials to premium

cookware and travel must-taps. Upgrade your everyday, go to quince.com/strict or free shipping on your order and 365 day returns. Now available in Canada and the UK, too. That's QU-I-N-C-E.com/strict for free shipping and 365 day returns. Quince.com/strict.

Hi everyone. I'm here with Steve Latic, professor at Georgetown Law, author of the one first

sub-stack that's frequently in our favorite things, the best selling author of the Shatter Docket, author of this year's Harvard Law Review Forward, and also some kind of field marshal according to Judge Edith Jones of the no-good, very bad fifth circuit. Welcome back to Strict's scrutiny, Steve. Thanks. Although I actually was, it was Mitch McConnell who called me the field marshal of the academic project and remind the federal judiciary. My bad. Yeah, what Judge Jones said was much worse.

“Fair enough. I guess that's why I went with that one. So this is actually a very special segment.”

It's an introduction to a series we're going to be running, starting on Thursdays, as bonus episodes from here on out. The series is about Supreme Court Reform. Yes, it is hot Supreme Court Reform September. And to kick it off and get you interested, we are starting with Steve. So the basic conceit of the series is as follows. Each episode or segment in this case will focus on one kind of Supreme Court Reform. We'll go through some standard questions, what the reform

is, what it would address, what are possible legal issues with it and whatnot so that you are equipped with a lot more information about Supreme Court Reform than you are now. You ready, Steve? Born, ready. For this topic, you indeed were. Okay, so we're going to start with

some more general questions. I wanted to ask you first, what is one of your least favorite things

about the court or one of the biggest things that you think has gone wrong at the court? I have so many things. There's like that notebook, right? The things that Supreme Court has done to piss me off and it's a long notebook. I would put a lot of things. I did the general umbrella of things have gone wrong because Congress has taken its hands off of the court. This is a real theme of my upcoming book, The Court We Need, which is that for a lot of our history, for better

for worse, Congress did lots of things big and small, basically to nudge the court and to leverage the court and the court in turn was a regularly looking overt shoulder or for much of a history

“up through the ceiling at Congress and that I think a big part of what has gone wrong with the”

Supreme Court is that Congress has stopped. Congress doesn't control the court's budget the way it used to. It doesn't control the court's docket, the way it used to. It doesn't control the justices, travel or the court's calendar or anything else about the court. The way that it used to and the result is someone I know once said the yellow court because part of why the court can live once is because it doesn't have to worry about repercussions for almost anything and that's new

Okay, so then maybe going a little bit more, specific, just to the past Supreme Court term, I guess it's still ongoing. What is your least favorite slash worst thing the court did last term? Yeah, that again, it's so many options. I know, it's like asking a Metz fan, right? What is the thing that has gone most wrong with the team this year? You know, it's like everything.

“I'm going to go in a bit of a weird direction and say that I actually think the worst thing”

that the court did this term was the series of emergency docket rulings in redistricting cases because whatever you think of the substance of Kalei and the courts, you know, to my mind, deeply problematic interpretation of section two of the Voting Rights Act, the zeal with which the court moved to put it into immediate effect in Louisiana and Alabama and the sort of machinations the court had already undertaken in the Texas and New York redistricting cases,

really lead to me are the biggest black eye that the court gave itself this term because it just looked so transparently partisan and it was such an obvious breach from the court's own prior commitment to what a claim was a principle that I would say, you know, for as bad as, you know, I didn't slaughter was and for as problematic, I think four to send in votes on the constitutional question in Barbara were, I actually think this was somehow worse. Okay, so in both of your

answers, you alluded to shadow docket Supreme Court's docket and the rule I wanted to talk to you

“about is of course docket reform. So I guess first just basic, what do we mean when we say docket reform?”

So I think people actually mean different things. You know, I tend to think of Dr. reform as an

umbrella conversation that basically has that its core, Congress reassert a more control over which

cases the Supreme Court hears and potentially how it hears them. Right, and so that's, you know, you could view that purely as a merit-stocked question about Cérari. You could view that as an emergency docket question about sort of tightening up the standards or even limiting the court's formal authority. But however you frame it, it's all to me about, you know, Congress doing more, basically to tell the court what it can and can't hear. Right, and just to underscore Cérari

and merit-stock it, you know, maybe for people who might be listening into this, not knowing a ton about the court, the merit-stocked just refers to the set of cases that the court hears with

“oral argument after full briefing and the vast vast majority of those cases come from the Cérari”

docket and that means they are discretionary. The Supreme Court itself chooses which cases it's going to hear and which cases to put on that full merit's docket. Right, 55 of the 56 cases, the court decided after plenary review during the current term, right? Of the 56 signed decisions we got in argue cases, 55 of them were cases the justices chose. Only Cale, as it turns out, was not, and even in Cale, they rewrote the questions presented. So, you know, this is a dominant

feature of the Supreme Court's docket over the last 38 years, but as you know, this was not always

so. The Congress used to actually exercise much more control over every case the court heard and over the means by which it heard them and that's to me the heart of the conversation about docket reform. So, can you give some examples about what you're referring to when you say Congress used to exercise a lot more control over the kinds of cases that the court heard and also in what capacity it heard them? Sure. So, until 1891, so for the first, basically 100 and one

plus years, since the court started in 1790, the court had zero control over its docket. There was no discretion, there was no surgery. Basically, the cases the Supreme Court heard were cases within its mandatory appellate jurisdiction that a party took to the court on appeal or that the lower court judges certified. That was a common procedure in the 19th century. What that meant was that there was no, oh, we don't want to take this case move available to the Supreme Court.

If the court had jurisdiction and if the right party invoked that jurisdiction, the justice has had to decide that case. So much so that Chief Justice Marshall will say in Cohen's versus Virginia in 1821. Literally, we have no discretion to not hear cases. It would be treason to the Constitution. If we decline to hear a case within our jurisdiction, that was how things worked all the way up until the late 19th century, at which point

it became a huge problem because the court had too many cases. It had to hear, but that was the

norm for the first century. And no one ever suggested it was unconstitutional. Indeed, it was just

the way the court operated. Right. And then after that, Congress kind of begins to give the Supreme

you know, the court has to hear. And there is now still a mandatory document, but it is much

smaller relative to what it once was. I would say two quick things on that. So the first is

the most common, it gets a little nerdy if you go all the way into the weeds. But by volume, the most common source of mandatory appeals, appeals the Supreme Court had to hear in the 20th century, where cases that went to these so-called three judge district courts. So challenges to state or federal laws on constitutional grounds, where Congress said, "We don't want a single federal judge to be able to do this whole thing, we want a common issue." You know, history doesn't

repeat it just rhymes. Right. And the three judge district court was a staple of, you know, challenges to state laws as early as 1910, and challenges to federal laws as early 1937. And what's fascinatingly is Congress scaled that back, rather than actually radically restructuring the court's jurisdiction so that by the time we get to the last real reform of the court's jurisdiction in 1988, Congress had already gotten rid of the redjudged district courts in almost every context,

except the ones we still see today, except a small number of campaign finance cases, and certain but not all challenges to congressional district in. Yeah. Okay. So then what problem or problems would this kind of docket reform, where Congress just exercises more control over what the Supreme

“Court does, kinds of cases it hears, what problem or problems would it address? So I think the first”

problem, and this is the most obvious, and I think, in dispute all one, but one, is how much the court stock it has shrunk. So, you know, I mentioned 56 was the total number of signed decisions this term. That's I think the sixth or seventh straight term all the way back to COVID, where the court hasn't even gotten to 60 decisions in our good cases. There's the 60 numbers interesting because before COVID, the last time the court had decided so few cases was 1864, you know, just a few years ago.

Not even those times. I know. Right. There's stuff right. But not even just as Thomas was on the court yet. And I mentioned that because, you know, a lot of folks will say, wait, you want this court deciding more cases. That seems like a bad idea. But the key is the justices right now can take

almost any case they want. The problem is that the cases they're not taking them that they should.

And so, you know, the first problem it would solve is you would have more of the court stock and we'll talk about some of the specific ways to do this. But more of the court stock it would be sort of cases that aren't just these red meat culture war, you know, super ideologically divisive cases were

“frankly lover hate the court. It only has so much capital, right? And it only has, I think so much”

an ability to handle those cases as opposed to more or lack of a better word, like nerdy, lawyerly cases that don't make headlines. Yeah. Okay. So then now maybe let's shift to some specific docket reforms, just to give people some examples about what that might entail. And again, docket reform could encompass so many different specific proposals. So we're just going to kind of tick through some, some, I know that you have, you know, endorsed or expressed supportive and

others that are just kind of out there in the ether. So maybe let's start with some of the proposed reforms to the shadow docket emergency docket. Because, obviously, when people think of what has gone wrong with the courts docket, they often think of the shadow docket. I would say thanks to you, but it's really thanks to them and what they have done. But anyways, okay. So very happy to give them the credit. Yes, me too. So one suggestion that I think you have written about is that

Congress could codify the legal tests or standards for when the court can actually grant relief or certain kinds of relief on the shadow docket. Could you say a little bit more about what you might be envisioning and why you think that might be a good thing? Yes. So it's already the case that when the Supreme Court is granting or denying an emergency application, it's exercising a pellet jurisdiction. It's exercising jurisdiction. Congress has already conferred by statute.

You know, the court is not ever especially careful about which statute it's using in those cases.

“But I think that the really important point here is that it's a concession that this is all controlled”

by Congress in the first place. And, you know, Leah, as you know, one of I think the most sort of

consistent doctrinal critiques of the courts behavior on emergency applications in recent years is that the judges are not consistently following what they have previously said are the criteria for the different types of emergency relief. You know, Congress writing them down wouldn't force the judges to follow them, but it seems like it would be a salutary development to say, we mean it. Right. Congress could define a reprobable harm. Yes. And in the process, you know,

harmed whenever it's enjoyed. Congress would say that's not true. The first of emergency relief. Congress could require the court as Justice Jackson has urged it to have to balance the equities, even when it thinks that, you know, the merits are going to drive most of the analysis of

“whether to grant emergency relief. You know, I think there's more debate and you and I may even”

disagree a little bit about whether Congress could require the court to write. For example, in this case, you about that one. Yeah. I mean, you know, I get a little squeamish about Congress telling the court

how to do its job as opposed to telling the court what powers it has, but you and I have always

thought about United States versus Klein and where the article three line is, I don't, I don't think it's worth getting lost on that sort of very fringe academic debate. The real point is Congress could do a heck of a lot to clarify what the tests are and to basically nudge the court to actually follow those tests, even if it's not going to sort of go all the way toward. You must write a 20 page opinion in every single case. Yeah. So I'm not going to, you know, go down the rabbit hole of, you know,

what's, is a specific legal issue with Congress, maybe requiring the court to issue an opinion or explain itself. But I do just want to flag that there is potentially one. And what that suggests is there might be some, let's say, constitutional challenges to statutes or legislation that

attempted to carry out some DACA reforms. You know, that you might think is a good idea. You know,

on this requiring explanation bit, you know, I'm personally of the view that I think they should require some explanation, maybe not like a 20 page opinion, but something about the merits of balancing of the equities and a reputable harm, maybe not before they grant relief, but within a

“certain period of time after Adam minimum. I mean, I think it's a salutary policy idea, right?”

I just, my concern is there's so little plausible constitutional objection to everything else we've talked about to this point, right? And so I think it's part of that's just a risk tolerance question for the policy reformers, which is, you know, codifying the standards, redefining the reputable harm, like there's no viable constitutional challenge to that. Versus like, would you also include provisions that could plausibly be challenged? And that's, I think

you say that, and yet you and I both know someone will discover an emerging literature that they will themselves manifest and create. I'm going to say, you say discovery, I was going to say conjure, but so no, but I don't want to lose the, the more important point here, which is that, you know, this is true of almost any particular doctorate reform conversation. There are so many different pathways that would raise just zero constitutional, zero reasonable constitutional hackles.

“And I think we can flag for folks that whether Congress could force the court to write or not,”

would be one of the ones where there would be a serious constitutional question, but could Congress ratchet up the standard, could Congress redefine a reputable harm? I just think there's no question the answer to that is yes. Yeah. Okay, so now I want to go to Merit's Docket, like regular docket, and ask you about some reforms there. One, I guess, is the ones you were kind of alluding to about requiring the court to hear some set of additional cases. And in part because I imagine

people will have the reaction that you were gesturing to, why would you want this court to hear more? Could you just kind of spin out some examples of possible expansions to the managerial jurisdiction docket or other ways of requiring the court to hear cases that might not concern people given the current court? Yeah, so there are two big ones. And there are others too, but these are the two that I think are the most easy to defend and and will, I think, be most accessible to folks on the ground.

So the first is Lee, you know this, and I teach this, the federal circuit courts have long had the authority to certify questions to the Supreme Court. I would make that mandatory and to be very clear not so that any panel could certify anything that's the Supreme Court, but so that a majority of the active judges of any court of appeals after deciding a case could say and we think the Supreme Court needs to resolve this question. Now, you could sort of structure that reform to

avoid, like just a stability problems by saying once a cert petition is filed, you take the vote of the judges and that, right? But every time I talk to circuit judges about Docket reform, they all, no matter who appointed them, they all have their own pet issue where they're like, I really wish

the Supreme Court had taken this up or we could really use guidance on this. And it's never some

big political or ideological, you know, sort of pet pee, but it's actually like some technical question about bankruptcy law or about the Johnson's versus Jones and what you can appeal as part of qualified immunity to Niles. Right. I mean, you know, you know as well as anyone, there are

And, you know, some of those cases will have an ideological valence, but many of them won't. And so the first thing I would do is I would give back some power over the court's docket to the courts of appeals. And, you know, folks might say, even the fifth circuit, and I was just about to say, can't wait to see what the fifth circuit dreams up.

But the reality is the fifth circuit's already pretty good. It got in cases on the Supreme

Court's start. Oh, yeah, for sure. This is not giving them a power. They have not already seized for themselves. Correct. And so, like, is it possible lower court's will abuse it? Yeah.

“I think having it be a majority of the on-banc court reduces the abuse potential. And I also suspect”

some norms would evolve within this process. But, you know, Leah, you remember back when folks were trying to get the federal sentence in guidelines before the Supreme Court before Booker and Fan Fan, the second circuit tried to certify a case called Penaranda to the Supreme Court. And they were like, yeah, LOL. There's actually, you know, a non-ideological fifth circuit case about old statutes limitations for federal kidnapping offenses, where the fifth circuit

split like eight to eight, right? And they're like, hey, Supreme Court, we need you to take this. So they tried to certify the Supreme Court said, no, those are the kinds of cases, where I would empower circuit courts. And, you know, if that had 15, 20 cases had the courts docked per term. Oh, no, like, you know, I think I think we'll be all right. Right. So now I want to ask you what I think I think. We kind of want more, sorry. I said there's you kind of, I just want

to throw out the second category, just in case it's helpful. Also, you know, for all of the sort of

courts effort to completely disengage from the death penalty and to not take up, you know, 11th hour stay applications and capital cases, it seems to me that it would be a lot easier to sell that if we had required the court to do at least one pass on the merits of all capital convictions

“sentences in the United States. So, you know, you know, I think there's an issue in questionally”

whether it makes more sense to have that be on the first appeal or whether it makes more sense to have it be on the appeal of the state post conviction proceeding. Yeah. But one or the other, right. So that the Supreme Court by the time a case comes back as an 11th hour capital application, the court has some familiarity with the merits. Yeah. Okay. So those are what I, I don't know, in my mind, think of a substantive, right, they affect the kinds of cases that the court hears. But

they're also possible, docket reforms that affect how the court decides these cases and what we learn about them. So I'm just going to rattle off some. I'm not going to ask you to take a position on all of these or tell me whether you think there are reasonable constitutional arguments. But I would be interested in hearing your take on what others that are in the ether that might be worth considering our. So some of the ones I've heard. One, forcing the court to tell us in advance what opinions they

are releasing. So if they say we're releasing opinions on Thursday, tell us once they're at noon what we're going to get. Maybe requiring them to disclose Sir Sherri votes. Right. Who voted to hear a case? Maybe Congress ways in more on the criteria for Sir Sherri. You know, that would have to come in. Yes. Okay. So it sounds like you like that one. What are other ones that are on the table and maybe worth just considering? I mean, codify on the search threshold. Right. I mean,

so, you know, the so called rule of four, which, you know, we teach our students that it takes four votes to grant Sir Sherri. Spoiler alert. It's not rule. It's not written down anywhere. You know, I would, if I were Congress, I would seize control of four votes for Sir of five votes for Sir Sherri before judgment before the court appeals is even rule of six votes for a summary reversal. I mean, I would, I would write all that down. I would codify the criteria in rules 10 and 11

of the Supreme Court's rules for when the Justice is grant Sir Sherri. Again, not because that will necessarily force the Justice to follow those criteria, but at least then it's not just, you know, information they're already controlling. You know, you mentioned the timing. I would actually think a bit about codifying the court's calendar a little more in detail than just, oh, the term

starts the first Monday and October. You know, I've argued for years that the court should get

rid of its April argument session. Congress could do that. So, you know, just lots of ways in which

“Congress could tweak the docket. You know, there are things Congress could do. I think to require”

the court to actually consider more informed poppers cases, which have fallen completely off of the cliff on the court's docket. Just so many different things that if we're going to have this conversation, we might as well have the full conversation. And just to sort of drive home one point, if we're going to talk seriously about Docket reform, we should talk about how the docket has not just shrunk, but how it shifted, and which cases have disappeared. You know, not this term,

but they're on the October 2024 term. The court didn't decide a single direct appeal from a state criminal conviction. That's insane. And so, you know, I think any sort of full, like comprehensive

where we think the docket can and should be reformed. Yeah. Another significant shift, you know,

pro-publica reporter, that this was the first term where the court released more, kind of matters

on the shadow or emergency docket, you know, that it did on the regular docket. Okay. So, in the course of this conversation, we've already kind of answered some of the questions I was going to pose, namely, what would we need to make this reform happen? Legislation. If legislation could make

“this reform happen, is there a possibility the Supreme Court would eat it or some of it into the sun?”

Yes. So Steve, I will leave you with one final question, which is, let's imagine Congress tomorrow adopts all of your desired reformed to the Supreme Court's docket. Why wouldn't that set of reforms be sufficient, even if it is necessary? It's a great question. Let me tell you I don't take 10 minutes to answer it. So, you know, well, that I think that the principal problem with the current court is I said at the top is that it's just not accountable. Docket reform is a step in the right direction,

but it's just one of the levers that Congress pulled over the first 200 years of the court's existence. And so, you know, do I think Congress reclaiming control over the Docket will have positive effects? Absolutely. But it won't change that the justices can still take whatever cases they want, right, beyond the ones they have to take. It won't change anything about the justices behavior off the bench. And it won't do anything to basically reassert the idea that

the justices need to look over their shoulder when this side case is. So, Leah, if Congress were to go down any of these more controversial paths in Docket reform, require on opinions or require on publication of vote counts. What's to stop the court from striking that down, right? Formally,

the answer is nothing. Practically and historically, the answer was that the court can win

individual battles with Congress, but it cannot win a war with Congress. And, you know, it's the specter of after the court strikes down statute one, Congress comes back and statute two and goes

“even harder. Like, that's how you get the court in line. And so, Docket reform isn't, you know,”

a decisive battle in a war between Congress and the court. You need Congress to also be in a position where the court is worried about what happens if it starts striking down these reforms and frankly, Leah, any of the substantive reforms that are almost certainly going to be part and parcel of any serious conversation in Washington in which Docket reform is even a piece. Awesome. We'll Steve, thank you so much. If people want to learn more about Docket reform and want to hear

more from you, where should they go? So, sadly, I write about this more than any rational person should in my newsletter one first, which is at SteveLotic.com. I also have an article in the BU Law ready from last year called Fixing the Supreme Court through its Docket. And this is going to feature fairly significantly in my upcoming book, the court we need, still searching for a subtitle, but the current subtitle of which is what's really wrong with the Supreme Court and how to fix it.

Amazing. Thank you, against you for joining. Thanks for having me.

Thanks again to SteveLotic for joining me and us to kick off hot, scotist reform, September. Obviously, scotist reform, scotist reform, September, one of my favorite things, and I have some additional ones. Number one, it's pumpkins by season again. We are so back then. No, I love pumpkin spice, but I'm not ready. It's the only consolation for the end of summer. And it turns out that adding pumpkins by is together with

the new Hortrada flavoring, starmuffs, and my usual caramel is epically delicious. Do you have any of you to guess how many grams of sugar are in an orchada? The limit does not exist.

“Yeah, that's why it's amazing. That's why I'm able to do all the things.”

It was like this episode, notwithstanding my poor sick puppy. Another favorite thing, Taylor Swift's icon session at the Grammys. Beautiful. So I brought the piano from the Eris Tour and performed a mashup that is absolutely beautiful. You have to listen to it. Also, home state of Minnesota, its state fair is beginning and seeing the anti ice entries in the Minnesota state fair, specifically the arts and crafts competition where they make anti ice posters out of crops and

seeds, love it, absolutely loved it. And that is just a beautiful Minnesota. That is literally Minnesota, a distillation of the ethos of Minnesota. Exactly. Exactly. They know how to do organization and resistance. Also loved, they didn't love the occasion for it, just as Jackson's descent in the election executive order case. And as teased up top, I would welcome any advice.

in her lungs. Heart seems fine. She's been on antibiotics. How do I take a check? That looks fine.

“She's taken a course of steroids and the poor thing is still coughing. Maybe it's the beginning”

of the semester and you're gone too much, and this is... Well, but I had to say it with her a bunch of clothes because she's so sick. And she can't even wear her. Well, yes, listeners please share any home remedies for doggy cough. Okay, onto my favorite things, I really enjoyed the novel parody so 17 by Hannah Lilith Asati. I have a few books on my shelf that I've just gotten, either galleys or newly published copies of, and I've really enjoyed starting them.

That's SkyPerryman's Ordinary People Extraordinary Times, Rachel Sheldon's The Political Supreme Court, and Naomi Klein, and Astratailers, and Times Fashism all pick those up wherever you can. I also met Mikey Friedman and learned about this effort called Page Break, which is written

up in the Times, but I sort of saw it and didn't fully appreciate it. It's this amazing sort of

series of weekend retreats where 15 strangers get together and read an entire novel aloud at like a Hudson Valley retreat over the course of a weekend. And it turns out like reading books allowed with strangers is incredibly fun and like generative and you're, anyway, it sounded actually quite amazing. We don't like read aloud very much as adults. Yeah, I mean, like Passover Saiders and like on July 4th, like I was with friends with Wisconsin, and we ran around campfire and everybody

read a sentence from the Declaration of Independence with their children, and that was actually really fun. So there are, you know, occasions, but it's rare. But anyway, so that I just loved the

idea of it's a page break as the organization. And then finally, the incredible outpouring of love

and kind of remembrances at the passing of the extraordinary Dalai Parton has been both heartbreaking

“and so beautiful, and also just such an important reminder of the way that Dalai Parton used her platform”

and her wealth, which is to buy millions of books for libraries and for children to fund HIV/AIDS research and advocacy to getting her COVID vaccine on live television, like the list, is very long. And she was just like so fierce and fearless, and all of the writings and conversations about her have been such a powerful reminder of what it can look like to use a platform to address injustice and alleviate suffering and make the world better. And it was also a reminder of just how

little there has been of that in the past two years by people with these enormous platforms. I mean, actually I should say Olivia Rodrigo, I think, is notable exception, especially recently, but I just kind of hope that this sort of post-Dolly moment serves as a call to more people in positions of power and wealth to follow in her footsteps. So one additional note before we go at Crooked, we believe the answer to right-wing authoritarianism is, at least in part, a big

“fun pro-democracy movement. And that's what CrookedCon is all about. So we're hosting strict scrutiny”

live in Washington, D.C. on November 6th. That's one day before the all-day CrookedCon event. CrookedCon takes place just after the midterm, so there's going to be a lot to discuss, like wondering a lot, why the universe has cursed us with both Samuel Lido and Clarence Thomas at the same time. You can join us for all the jurisprudence sense you can handle. Take us for strict scrutiny live and all-day CrookedCon are available at CrookedCon.com.

Strict scrutiny is a Crooked Media Production. Our show is produced by Melody Rowl and Michael Goldsmith, music by decouper. Our team includes Matt DeGroat, Ben Hethko, Joanna Case, Kenny Muffett, Adam Lippert, and Eric Shoot. Our production staff is proudly unionized with the writer's guild of America East.