SCOTUS Squabbles Go Public

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She's small, 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. [MUSIC] Hi, everyone. It's Leah. After we recorded our regular episode, The New York Times,

specifically, Jody Canter and Adam Liptack, released a bombshell story about the origins of the

“shadow docket. And they obtained the original documents behind what was in important respects the birth”

of the modern shadow docket. And that's the Supreme Court's 2016 decision to stay the clean power plan with no explanation before the plan went into effect and before lower court's head-issue to opinions about sluggality. We obviously needed to discuss this and with the expert on the shadow docket, who's conveniently enough and evoked in the New York Times piece. And that's obviously Steve Ladeck, professor of law, George Town Law School, and author of The New York Times

bestseller, the shadow docket, how the Supreme Court uses stealth rulings to a mass power and

undermine the republic. He's also the author of the one-first sub-stack. Okay, thanks so much for joining

us on late like literally like 15 minutes notice, Steve. Happy to be here. Which one of the better circumstances? As of our. So for people who might not remember what exactly the story is about back in 2016, and generally speaking, Supreme Court wasn't really in the business of firing off on reason to order a staying a bunch of lower court opinions or administrative policies. But they

“did so and really began this unprecedented practice in important ways when, as I said in 2016,”

they stay the clean power plant with no explanation. And there's so much to talk about from this New York Times story, but I guess I'll just ask you, what's one big thing that's stuck out to you and we can go from there. John Roberts. Oh yeah. I want to say a bit more. Sure. So, you know, I don't think that either you or I, or most of the folks who listen to Strix scrutiny, wherever especially smitten with the balls and strikes canard that, you know, then nominee John Roberts

tried it out in 2005. But if this isn't the last nail in whatever coffin was left for the idea that John Roberts is some impartial institutionally minded, you know, deeply principal jurists who believes in judicial restraints, you know, I just want to hold his two memos up and say no. Right. He's, I mean, even though, like even though Justice Kennedy is clearly the dispositive vote in this case, none of this happens without John Roberts. And the story describes how

you initiated it. Right. He is the one that puts the stay application to the conference,

“writes a memo saying, I think we should do this. And when people push back, he is the one that”

continues to press for it. And his memos, you mentioned the two memos, they read like they were

written by industry. You know, a key point of his is that this is, quote, the most expensive

regulation ever imposed on the power sector as if that is the emergency warranting intervention. So, I mean, there's so many things to say. I'll just say, and I say some of it in my, in my newsletter this morning, to me, the three things that really stand out about the memos themselves, as opposed to just their existence. Right. Is one, he is completely wrong about the stay standard. Yeah. Right. So, so he invokes older cases that were about stays of lower court mandates.

Yep. Right. In a context in which what the, what industry was asking him to do was reach across the separation of powers. Yes. And basically, almost enjoying right in executive branch policy. Right. Everyone agrees that there are no examples before this case of the Supreme Court doing that.

their opposition made a huge deal out of this. Right. There's no acknowledgement in his memo

that this is new. He sights the standard for a much more traditional stay as if that were the correct standard. And then there's, so that's one. So, one is he sort of, he gets off on the wrong foot by not even taking the, the actual request seriously. To, I mean, Leah, you're a point about industry, I would sort of slightly reconfigure as a point about a reputable harm. Oh, yes. Which is definitely what I talk about a reputable harm. So, this is the guy who, you know,

is responsible for the court's modern obsession with the idea that any time the government actions are blocked, the government is irreparably harmed. Yeah. Just just want to underscore this. Right. They have been virtually explicit in shadow jacket orders from the Trump administration that there's almost a per se presumption of irreparable harm for the government, whenever the government's

“policies are irreparably enjoyed or paused. And Leah, what opinion do they cite for that proposition?”

What opinion do they cite for those? Oh gosh. It's an in-tavers opinion, but from 2014, by a little guy named John Robertson. Right. And so, you know, this sort of, even if you buy the argument that the industry actually faced irreparable harm and owe by the way, the court also doesn't think economic costs are ever irreparable harm. Yes. Right. But even if you bought the conspiracy

theory, I want to come, that's my third point about the irreparable harm. This is the guy who also

says the government's reputally harmed. So, where is the balancing of the equities that the court is supposed to be undertaking here? Right. We're about the harm to the administration. We're about the harm to the, oh, I don't know, environment. Right. No one talks about harm to the environment. Yeah. Nobody. So, I want to get back to why I think the opposition members are so soft. I suspect that you and I have the exact same escalation, which is actually a Kennedy. Exactly.

“Justice Kennedy is still on the court. Right. But, and then the third point is like the factual,”

and this is more in Roberts's second memo than in his first, but like the factual basis for their belief that if they didn't intervene in February 2016, they'd be stuck. Right. It's a BBC news story. Right. And one other like random factual statement that wasn't in the record. How do we know they weren't in the record? There was no record. Exactly. Yeah. So, I want to talk about those citations because this is also just a huge part of the story to me, but just one more be it on a

reputable harm, which is it's not only that in my view that she has inverted this irreparable harm, it's that he has been so completely unconcerned with all of these claims to irreparable harm that people whose lives have been totally disrupted by things that Trump administration has been doing. He doesn't care. And neither does. Or in the funding or in the funding context. Right. Right. Programs that have to shut down. Yes. Because without funding, they can't continue to operate.

“That is the exact kind of baked in economic costs that was beautifully the basis for why”

they intervene back in 2016. So, the point is not just that he's being inconsistent. The point that he's being ruthlessly hypocritical. Yes, exactly. So, let's talk about the citation because part of the story and what seems to be driving the chief justice and maybe some other justice as well is that the chief seems really angry at President Obama and the Obama administration and their EPA. Because what had happened is the Supreme Court had earlier invalidated the Obama administration's

rule regarding mercury admissions. And after they do so, the EPA basically says, look, the majority

of power plants are already in compliance or on their way to compliance. So, this isn't going to be a huge deal. And the chief justice basically takes offense to this and says, look, this is going to mean our rulings aren't necessarily going to keep these policies from going into effect, reaping their benefits and imposing the costs. And so, the chief repeatedly gestures to this. Because let's just be clear. Because some people voluntarily chose to comply with the regulation.

Exactly. Yes. Right. Right. Right. The voluntarily chose to comply with this regulation, arguably suggesting the regulation might not have been so awful after all. And indeed, that was partially the story of the clean power plant because for all of the chief justice's belly aching, but how horrible and catastrophic this policy was going to be, it ends up industry meets the targets. And so, the prediction game not so great. But the memos, as you were

noting, site the BBC interview, talking about how the EPA said they were baking in the clean power plant to the system. And he invokes the quote, "comments of the EPA Administrator." And there's so much to say about this. I mean, obviously, this indicates they care deeply about what is said about them. They are monitoring this. They also seem to care deeply about the consequences of their opinions and not just like the reasoning or the judgment and also where

later, right, and all of a sudden decide it. And also, this is another thing that I could not get

out of my head. The hypocrisy of the chief justice is fixating on these statements. When two years later, he says, "You can't take anything the president says and use it against him in the travel

“bank." Well, that's why it seems a little inconsistent, right? It's just wild. It's wild.”

So, I will give the chief a sort of an eighth of a pass for SBA because he was on the right side in SBA. So, you know, we could talk about some of the premonology a bit too. We don't have memos from Scalia, Thomas, or Ginsburg, right? We have memos from six of the justices. I guess Alito's memos to me entirely unsurprising. Oh, of course. Right. He built the course legitimacy. That's right. The course legitimacy is undermined. Yeah, okay.

We're back looking near a belly where he says, "We can't possibly indulge the someone who might be elected in a district. We later striped down. Never mind that I'm responsible for doing that in Alabama." But I guess I'm a little struck also by Justice Kennedy, right? Because it seems to me that the chief had to be the mover here. This is a case that came out of the DC circuit.

He was the circuit justice. He would have always written the first memo. What's striking

to me is that clearly everyone was fighting over Kennedy's vote, right? Which is why, you know, Breyer's memo is very civil, right? Breyer proposes a compromise plan. Exactly. Yes. He offers the compromise basically saying, "Well, the states can ask the EPA for an extension and if the EPA doesn't give it to them, then they can come to us." Like that was his right. Yep. And Kagan adds, we can tell the DC circuit to Hustle, which is funny. Robert's who pushed that in his response,

but it's funny because now they do that all the time. Exactly. Right? And so what's striking to me, though, is that the result is that there's nothing in the memo about the sticks and what

“I mean by that is the sticks for the court. Yep. And I think some of that's because, you know,”

Breyer and Kagan and so to my order were all pulling their punches a bit, because they thought it still had a shot at Kennedy's vote. But so there's almost like no acknowledgement. I mean, partly because the chief's memo doesn't acknowledge how novel this is. Right? None of the discussion inside the court is, is this something we should be doing in general? Yep. Yeah. And clearly, I mean, with the benefit of hindsight, they think they did also, because they've only continued

to do it since. And that is also part of what is so startling to me is you look back at their memos. They were wrong about the predictions. They were wrong about so many aspects of this, and they just keep doing it. And I think also, I mean, so this is maybe a question for you, right? Because I guess this is a question that it's more about what's inside just as Kennedy's head. Yeah. Which is maybe because his memo I find to be the most frustrating of all of them,

because he's like, I'm persuaded by the Roberts' men who's without any analysis of that. What aspects of them? Right. So, but I wonder, I mean, I wonder if part of this is Kennedy believes that he'd be the gatekeeper. And that, you know, things fall apart, not because of the move they make in 2016, but because when the volume ticks up, Kennedy's no longer the gatekeeper, now it's the chief and cabin model. Yeah. So, that is definitely a possibility. On the other hand,

I, and I don't take you to be giving Justice Kennedy a pass. But by the time he steps down, the Supreme Court has already used the shadowed outfit to give the Trump administration a lot of what it wants on the travel ban. So he has seen, right, like what this might become, and he has seen that the Trump administration is going to be making these extravagant requests, and he decides to give them a seat on the Supreme Court. And so, maybe he thought that,

right, maybe this was one of, like, I will say, the country delusions, but obviously did not play at that way. And then just the last obvious thing that Trump's out at me is, no one suggested any of the substantive exchange should be memorialized. Right. Also, I know. Because I, I don't know, right, I'm not sure if I'm not. But he's trying to persuade colleagues. Right. But so, the actual order we get, right, has no analysis from the majority,

and has no dissent. I mean, right, the, the Dems all note that they're dissent, but they don't say why. Yes. And there's no discussion internally about whether that's a big thing or not. I mean, right. Yeah. So, the court basically opens a Pandora's box because the chief was pissed off at the Obama administration in a context in which

does this be confusing? Because we have a critical about why. Right. And doesn't tell us anything

“that would give us any insight. Right. And. Yeah. Right. Exactly. And I think we've already been”

implicit about this, but the fixation on the equities and the fairness of all of this is also really hard to miss because it was such a reflection of results oriented judging. And the

And yeah. So, this is why I find the timing of the story really fascinating because, you know,

“as, as you know, as I think you guys probably talked about in the rest of the episode.”

It's been an interesting week for conversations about the Supreme Court's lack of politicization or very politicization between Justice Jackson's speech last Monday at Yale, Justice Thomas's speech Wednesday at Texas. Right. And the the Justice Kavanaugh is a principle centrist leading us to a bright future of bookstore. It really does seem to me like this story pours a whole lot of cold water on everything except Justice Jackson's speech, which is completely

consistent with what's in the clean power playing members. That the court stopped taking equity seriously that in the process it stopped caring about how it's behavior affects anyone other than who the court uses its constituency and that that's the central problem with the emergency doctor. Yeah. Since you mentioned the Justice Kavanaugh as an institutionalist and willing to save the

“country book tour, did want to explain for our listeners who might not understand it. You know,”

on this podcast, we constantly struggle between wanting to talk about things and not giving them airtime or platform. This is an example where this already has a platform. So one of the co-hosts of advisory opinions, who's now the publisher of Skoda's blog, Sarah Isger, Sarah Isger for us, former spokesperson for the Trump DOJ during child separation, has a new book last branch

standing in which she argues the Supreme Court is awesome and they're doing amazing sweeties and

actually especially Justice Kavanaugh. Especially Justice Kavanaugh and they have this grand plan to save the country from executive power and that's actually what they're doing all along. And indeed the day before this canter lip tax story runs, she has an interview with Ross Doothet and the New York Times, explicating the thesis of that book. Again, Supreme Court doing the amazing Justice Kavanaugh is going to save us and they're raining in executive power. And I just don't know

if you can have a better reveal about why exactly that is so misguided and also underscoring how it is obviously an effort to legitimize and give cover to what the court is doing than this one too punch. But that was the reference. No, and it's whitewashing because part of what I find, and I have not written anything about the book, I wrote a piece in my newsletter back after the terrorist case because Sarah is part of piece in the Atlantic. After the terrorist case was said the

real program of the Roberts Court is raining in presidential power. Oh my God. And you know, it's not just that like Leon I both realize that that plane, it's that the actual analytical foundation for that claim is based on a remarkably superficial series of easily debunked and or incomplete assessments of the work of the court. I mean, she writes a piece about the Trump administration being rained in by the court that ignores just about all of the Trump

administration's wins on the emergency dock at last term. I don't know how you can do that. And so it seems to me that part of the problem here is that you can believe that the court is getting things right in these cases. I don't. But the notion that this is somehow reflecting some deep body of coherent principles that reflect judicial decision making at its finest. I think it's rather blown up by what we learned on Saturday. Yes, completely. And you know, if you ever find yourself

producing legal commentary that treats the range of reasonable views as somewhere between

the shadow docket is pretty good to the shadow docket and justice cabinet are amazing.

You might want to ask yourself, what exactly is this commentary slash publisher slash expert exactly

“trying to sell me on? That will be my final note. Yeah, I mean, that's what I had to top that”

I said to you to say one more thing, which is as Leah, I think you know about as well as any other human being in the planet. This has been my project for the better part of the decade. And you know, I think it's worth stressing that whatever, you know, there's going to be efforts on the right to sort of say what the court did in the clean power plan cases was totally legitimate, right. The same folks who thought that the Obama administration, I mean, back to the Isker thing

that Obama was just his bad at Trump because he said, I have a I have a pen and I don't remember what everything he had on this. But, you can think that the results in these cases are correct. You can think that the court was correctly pissed off at the Obama administration. We are increasingly past the point where you can defend the court against charges of hypocrisy, inconsistency, and lack of principle. And so, you know, if you're only principle is that I like the results.

It very well, maybe possible friends that you don't have any principles.

what a public service. Thank you to Jody and Adam for getting this out there and getting this done.

“Thank you so much Steve for hopping on on short notice. And for all of your work on the shadow”

docket, you know, if you have read Steve's book, the shadow docket, this would not have been surprising. And so,

again, it's mom. Please check that out and also Steve's sub-staff one first, you know, to stay

up to speed on all of this. And thanks again, Steve. Yes, yeah. And now for our regular episode. Stick scrutiny is brought to you by Kozieroth. Mother's Day is coming up, which means it's time to treat the moms in your life, including dog moms. And Kozieroth is a guaranteed way to do that. Kozieroth creates comfort designed for the rhythm women live every day, from the soft plushy fabrics in the morning to the comfort that helps unwind at night.

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20% off because home starts with mom. Strix scrutiny is brought to you by Mosh. It's for 20, which means it's probably snack time. But I'm also in my 40s on this 420 and the older I get, the more I find myself wanting to be more intentional about the way I live, eat, and take care

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Head to moshlife.com/scrutiny, and subscribe today to get 25% off your first variety pack, and 20% off your monthly subscription with code scrutiny. That's 25% off your first pack, and 20% off your subscription of brain boosting bars delivered straight to your door. Start building brain health into your everyday with Mosh bars. Thanks to Mosh for sponsoring this episode. Hello, and welcome back to strict scrutiny. Your podcast about the Supreme Court and the

legal culture that surrounds it. Where you're hosts? I'm Leah Littman. I'm Melissa Murray. And I'm Kate Shaw. And we have a great show in store for you today. We're going to begin by discussing some news. Are you there, God? Because there is a lot of it in particular involving Popleo. We will then walk through this single scotist opinion that we got last week, and we will

also preview the first week of the April sitting, and as always, we will close with some of our favorite

things. Alright, first up, some news, legal ish. First up is the President and the Pope.

depicting himself as Jesus Christ healing the sick, scratching that scratch that as a physician,

“healing the sick, dressed as Jesus. That's what you do. That's a physician. Right. That the”

President would ease up on the Messiah imagery. You would be wrong. This week, the President posted another image of himself this time being embraced by Jesus. What would Jesus do, indeed? Anyway, I can tell you what Jesus probably wouldn't do. Jesus probably would not pick a fight with the first American pope. But as should be evident, but nonetheless bears repeating,

Donald Trump is not Jesus. Amazing. This needs to be said, Melissa. But do we need a fact back?

Is he Jesus? Well, we get to. It has been a pretty amazing development in his otherwise cursed timeline that Pope Leo, the 14th, the first American pope, has emerged the way he has as this singular voice of moral clarity. He is increasingly spoken out against the administration's hard-line immigration tactics and has now begun to criticize and no one certain terms the administration's catastrophic wars emphasizing the need for multilateralism, championing decency and the rule of law.

Last month, when DEI Defense Secretary, Pete Higgseth called on Americans to pray for victory in

Iran, quote in the name of Jesus Christ, aka Donald Trump, apparently. The pope, in his Palm Sunday

message, said in what definitely seemed like a response, God, quote, does not listen to the prayers of those who wage war. Oh snap. And of course, the president of the United States took all of this personally. Just a few weeks after Easter, the holiest day in Christendom, he decided to drag the Supreme Pontiff, Pope Leo the 14th for filth. Let's roll the tape. Why did he put that up? Hopefully, I'll untree so soon. I don't think he's doing a very good job. He likes crime, I guess. If we don't like tape,

Pope, it's going to say that it's okay to have a nuclear weapon. The week on crime is just, I'm obsessed

with that law. Whatever anyone says shit to me, I just say your week on crime. Or the jail,

“exactly. He's like, no, can you see in the crime in that, I can see? Yeah, I think about it. Think about it.”

In any event, the vicar of Christ is doubling down on DGAF, responding to the president's comments and posts. The pontiff responded, quote, I'm not a politician and I do not want to enter into a debate with him. shorter, Pope Leo, fuck that guy. More like, then who's she? I don't know her. I don't know him. That seems more, more, more, more papal honestly than after that. More hateful, yeah, it's true. That is, your mileage may vary. I do think, Pope Leo was just like,

no, no, no, no, don't need to. We'll not, I do not engage in any event. Pope Leo also made clear that he would not be cowed by the president saying, quote, I continue to speak strongly against war, seeking to promote peace, dialogue, and multilateralism among states to find solutions to problems. Too many people are suffering today. Too many innocent lives have been lost. And I believe someone must stand up and say, there is a better way. Just a minute.

What would Jesus do, should I go? That doesn't seem like it, but don't worry, not one to miss the chance to suck up to the guy upstairs and hear that's Trump not God in this man's universe, despite his avowed piety. The vice president of the United States also weighed in to say, quote, in the same way that it's important for the vice president of the United States to be careful.

“When I talk about matters of public policy, I think it's very, very important for the Pope.”

I can't get through this for the Pope to be careful. When he talks about matters of theology, Mr. Vance said. Sir. What do we call this? Is it God's planning? Is it vance planning? To be back? It's something else. I do think this is an improvement because it does seem like J.D. Vance is advocating for species of separation of person state. So that's our plus. Let's all look for the silver linings. Right? I'm trying to remember the name of this forthcoming book.

And I feel like is it communion? It's a man of mine. Close. Close. You'd be forgiven for making that mistake. But in fact, it is something like finding my way back to faith. And as I think about this upcoming book release, I just wonder whether we should revive something that we've done previously.

think on it. I think the vice president would love that. I do. I'm sure he would. And I'm really hoping

that the vice president manages to do with his book. What he did with Victor Orban, ADF, and Germany. The invitation to his hope. Right, and Pope Francis. And that he does with his book, you know, in that he helps another book coming out that week, which would be of course the paper back version of Wallace and updated chapter on the unitary executive and everything else. So yeah, anyways, get vance on that now. Yes. Exactly. Exactly. Have him campaign against my book.

Yes. Ask for better publicity. But women are reading and reading. No. But speaking of being careful

and talking about matters of theology, DEI, Secretary of Endless War, Slash, Secretary of War,

crimes, alleged crimes, peat keg Seth, keg's breath. That's not it. I was a Katie fan. Katie did keg's breath. I was Katie fan. Love her. I love that. Anyways, DEI, Secretary of something peat heg Seth quoted a Bible verse that was actually some lines from Quentin Tarantino's 1995 film Pope fiction that loosely drew on the Bible. But of course, was not actually in the Bible. Because actual reading is apparently too hard. What's your two favorite Bible verses,

wrong answers only? Mine is dwayne rebagged with a handle of time. So I stole his butt plug lube inside. When I tell you the crowd in New York City lost its mind, at that line above all other lines that I am not exaggerating. We'll get to my other favorite Bible with what you're coming with a cottage. Okay, what's your escape? He who picks a fight with Pope Leo, shall have, shall not have the last word. Okay, mine is tiktok. He don't stop. That's for you Adam music.

Sorry, inside, inside joke. All right, onto some other news, speaking of squabbling up, we are about to hit the final stretch of October term 2025, which means the girls and the

ghouls are fighting. All right, first up, we got a girl. We got a ghoul in the first ring. Girl

“versus ghoul. So I think it's now two weeks ago at an event at the University of Kansas Law School.”

Just as much of my or said, it went asked a question about the known versus vascues per dome case, quote, "I had a colleague in that case who wrote, you know, these are only temporary stops. This is from a man whose parents were professionals and probably doesn't really know any person who works by the hour. There are some people who can't understand our experiences, even when you tell them. There was no lips isn't there. That wasn't all a continuous statement,

but all of that was in just as so to my ors remarks." So obviously, she was talking about son of privilege, Brett Kavanaugh, inventor of the Kavanaugh stop, where in ICE agents are permitted to racially profile people, regardless of their citizenship or legal status in this country, and detain them, but the detentions must be brief and do not have any real impact on their lives, jobs or rights. Wait, no, that's not right, because someone told Brett Kavanaugh that.

“Well, so I think she's someone told Brett Kavanaugh something, and it's unclear exactly what”

happened, maybe what, quiet, but a little, a little. Then last week, just as so to my or walk back, some of her comments. So the Supreme Court's public information office released the following statement, quote, "At a recent appearance at the University of Kansas School of Law, I, that is just as such, my or, referred to a disagreement with one of my colleagues in a prior case, but I made remarks that were inappropriate. I regret my hurtful comments. I have apologize

to my colleague." And, quote, "Why do you think she apologized? Slush, should she have?" We've talked about this before, and this is obviously been written before. She is somebody who works very hard to maintain good relations with her colleagues. It seems like it matters to her a lot. I mean, she's like, "God, good relations with everyone." She really does seem to care a great deal about, you know, knowing and maintaining like genuinely warm friendships with everyone in the building

“on the court, and I think he actually was offended, and she felt badly. I'm not sure why she”

felt she needed to do it publicly. Sweet. I don't know, but obviously Melissa, you are much more of a

I think she does prioritize collegiality. I mean, she was friends with all of her colleagues

on the second circuit, even when there were broad ideological disagreements, although not quite as

broad as these. But I guess I bristle a little with the idea that these comments were inappropriate, because I actually would have said they were incomplete, right? I mean, actually, she could have given him a much harder read. I mean, so basically she was just saying, and again, it was harsh criticism. Like, you know, this is someone who doesn't know what it's like to need a job, need to show up at your job every day, where a detention stop could actually be fatal to your employment prospects. Like,

if you just did not show up at work because you had been detained by ICE, whether wrongfully or not, you were going to lose your job. Like, his parents are professionals. They have the freedom to be like, you know what? I'm taking a personal day. Like, I detained me, although that would

“actually never happen. I think that was the gist of her comment. Maybe it's harsh, but I think it's real.”

I actually thought she could have gone even further because the real critique of Brett Kavanaugh here is not necessarily that he is the son of professionals who, you know, may not know what it's like to have to show up every day at a nine to five. The criticism of Brett Kavanaugh and these Kavanaugh stops is like, you are a white guy who does not know what it's like to be a person of color living in this country at a time when the government is racially profiling people and

it was just ignored the fact. Yes. Yeah. I mean, about that's the real criticism. Yeah. And I think she was actually quite restrained and not being like, yo, do you know what it's like? I mean,

like, this is basically what black people say about stopping for us. Like, it doesn't matter

who you are, it doesn't matter what degrees you have, like how much money's in your bank account, this can hit you at any time. And it is devastating. Maybe in a very real practical sense to

“your employment, but also to your dignity. And he just does not get that. And I think she could have”

gone in and she could have gone in really hard on him and she spared him. And so props to her for some restraint, I think. Yeah. So in addition to the possibility that it just matters to her to maintain these relationships with her colleagues, a part of me wondered, which is kind of the flip side of what, you know, I jokingly suggested last week, which was what did Brett Kavanaugh do this time to provoke these comments, whether those relationships and maintaining them, she thinks and whether

they, in fact, do accomplish some substantive purposes, maintaining relationships in order to preserve the possibility of a coalition to avoid the next cliff jumping into fascism. And I don't know to what extent she thinks that. I don't know to what extent that is true. We do know these people have very thin skins. And so it's not outside the realm of possibility. And this is part of what makes their jobs so difficult. And it is hard to assess from the outside exactly what is happening.

And to know in some alternative universe, whether some other course of action might be better, that's my own personal view, as I've said before, but I don't know exactly the calculus she is making. Well, I mean, so I do think that there is that recently filed case in the second circuit that's being brought by individuals who would be subject to these stops challenging the prospect of these stops. And so there is an opportunity, I think, for Justice Kavanaugh to on the record

on the merit stocket actually recant what he did in his concurrence in known versus Vesquez, Prodomo. And maybe her initial comments are meant to sort of spur that on to actually clear some room for him to sort of like, you know, listen, I didn't think this out fully, like, here's why, whatever. And you know, I do think she was just like, okay, she probably got some heat from people about this. And you know, clearing the air, but she said it, right?

And I don't write, she said it. She may regret having said it, but she said it, it's true.

“And it's not even the worst thing she could have said. Yeah. If you were wondering,”

listeners, whether the Supreme Court of the United States falls prey to patriarchal

double standards when it comes to critical speech amongst colleagues. Well, that is obviously

an open question. We will simply note, we're making no statements here, but we'll just note that on the same day that Justice Sotomayor's apology was released, Justice Thomas made the following remarks at a speech delivered at the University of Texas at Austin. Wait, can I just quickly interrupt to note that at these remarks, Justice Thomas mentioned at the outset that he was joined by, and like wanted everyone to know that he was joined by Harland Crow, which is a name that

people may not have heard for a while, but that is the, but we remember him. You guys remember I had our listeners do, but this was the jet harlot in the event of fact, or a close personal

event, I just thought it was the trolliest move for Thomas to just say, like Harland, I'm so happy to have you here at the outset of his remarks, because he wants everyone to know he is not worried about the scrutiny areas face. He's not sorry. So when I said, yeah, and then he took my time to say

“a lot of other, I think pretty jaw-dropping things, just in terms of this fall into the talk,”

let's roll it. Since the day I arrived in Washington, there was never a shortage of people

espousing noble purposes, saying all the right things. All around me, there have been people full of promises, claiming a commitment to some righteous cause to traditional morality, to national defense, to free enterprise, to religious piety, or to the original meaning of the constitution. They recast themselves as institutionalists, pragmatists, or thoughtful moderates, all as a way of justifying their failures to themselves, their consciences, and their country.

Progressivism seeks to replace the basic premises of the Declaration of Independence and hence

our form of government. It holds that our rights and our dignities come not from God, but from

“government. It requires of the people they subservience and weakness incompatible with a constitution”

premise on the transcendent origin of our rights. You will not be surprised to learn that the progressives had a great deal of contempt for us, the American people. Well, well, well, yeah, I mean, so it's me, where the problem, but I don't think he's going to apologize to us. So, I mean, take kind of the double standard point, just as much of my apologizes for criticizing one of our colleagues, you know, in pretty measured terms, on the same day Justice Thomas launches this diatribe about

progressivism, a diatribe in which he labels those who descend from the conservative values as spows by the signers of the Declaration of Independence, many whom, unapologetically, own human beings, the greatest threat to the country. I also have to say, the unhinged theocracy in this speech was

“also, you know, our rights don't come from the constitution or from government. They come from”

God, the number of invications of God was pretty stunning. And then, of course, there was this sort of attack on kind of progressivism and progressives. But of course, that's not what was in temperate or over the top in the kind of category of public statements by Supreme Court justices in the month of April. I'm so no need to apologize to, you know, half the country for that. Got it. Got it. Yeah, okay, but that is not clock it all in terms of the Justice's writing circuit, because they have been busy

also last week, Justice Jackson decided to enter the prey delivering some pretty pointed remarks about the shadow docket as part of a lecture that she gave at Yale Law School. So, let's play a clip from that speech. It is one thing for the Supreme Court to entertain a stay application early in a

case's life cycle and publish its back of the envelope first, blush and pressions of the merits

of the legal issue. It is quite another for the court to then insist that those scratch paper musings be applied by other courts in other cases, styming the full deliberative process. I adamantly reject any effort to normalize a process whereby the Supreme Court actively super intends matters that are pending in the lower courts. There is no such thing as an interim docket. I disagree with some of my colleagues who have made public statements suggesting that, you know, the court really

has its hands tied or that this is a function of a lot more of these paces being filed or applications being filed. It seems that unlike those people who are actual DEI hires, Justice Jackson knows how to read and she knows how to read for filth. Like the scratch paper musings line just injected into my veins. My favorite part is when she said there's no such thing as an interim docket. I don't know. I'm not trying to make the interim docket. I refuse to legitimize. It's not

this happened. Here's the question, is Brett going to come into our office next week and demand an apology for disparaging interim docket, which is, of course, something he coined or is, I guess, is trying to make happen. He coined it because originalism, I think maybe Justice Alita was

the humor. I think Brett is the one who's been at least pushing interim. He's definitely been pushing it. Yeah. Yeah. Strix scrutiny is brought to you by Zbiotics. Let's face it after a night with drinks. I don't bounce back the next day like I used to. I have to make a choice. I can either have a great night or a great next day. That is until I found Priyalkahol. Zbiotics Priyalkahol probiotic drink is the

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first order. Thanks to wildalaskan Company for sponsoring this episode. Okay folks, we got a new twist in the ongoing saga regarding Judge Jeb Bosberg's efforts to hold this administration in contempt for refusing to heed his April 2025 order to return to the United States planes carrying Venezuelan migrants to El Salvador. As we've talked about on the pod, about a year ago, Judge Bosberg issued a ruling, finding that probable cause existed to

hold the administration in contempt for its refusal to return the planes of Venezuelan migrants to American airspace. The ruling was appealed to the DC circuit. There was a lot of back and forth. And last Tuesday, we got the latest iteration. And when the DC circuit issued its fourth order, halting Bosberg's contempt inquiry. And Trump appointee and reputed Skoda's shortlister,

“Judge Naomi Rao, I think no one has told her that the lady spot has been filled.”

Judge Rao wrote for the two to one panel and she characterized Bosberg's ruling as quote-unquote improper, unnecessary, and a clear abuse of discretion. She further maintained that the Trump administration had a quote-clear and indisputable right to termination of this judicial investigation because Judge Bosberg's initial order requiring the planes to return was quote insufficiently clear and specific to sustain a charge of criminal contempt. According to Judge Rao,

Bosberg's initial ruling only prohibited the removal of the migrants and quote said nothing

when Bosberg issued his ruling, the removal had already occurred thus the DOJ's decision to hand over the migrants to Salvadoran mega prison could not support a contempt investigation.

“Well, yeah. So this latest order, that's how you campaigned right there. That's how you do it.”

I think it's probably not going to work, but it does seem to be what it is. No, Judge Rao should have added Judge Bosberg is weak on crime. That would be how you campaign the Dow. Yes. Yes. Although it didn't work out that well for the last person to try that line. So maybe she's right to avoid it. She feels the truth, yeah. Right. Ladies, ladies, talking about the

Dow never worked. No. So this order goes on to direct Bosberg to terminate his criminal

contempt proceedings and this latest order was issued by a three judge panel featuring not just Rao, but her fellow Trump appointee Justin Walker and then also Judge Michelle Childs, who pointedly did not join a judge Rao's order. The attorneys for the wrongfully removed migrants have indicated that they will seek on-bank review of the panel's decision before the

“full-DC circuit. And the administration may well face some tough sledding with the full court”

in that six of the courts 11 judges are already on record saying that Bosberg properly exercised his contempt authority and that an earlier panel was wrong to cut off the district courts investigative process. That was a very complex opinion, but that really was how the numbers kind of shook out. So I definitely don't think this three judge panel is the last word on the Bosberg contemporacies. Pamela Joe Bondi may be out of the administration, but she is not

out of our hearts, our minds, or others' hearts and minds because it seems like in a last-ache effort to prevent herself from being Pamela Joe fire bomb-deed, director of national intelligence, not a joke, but kind of a joke tells a gathered, referred to government officials who effectively

served as whistleblowers in connection with Donald Trump's first impeachment inquiry to the department

“of justice for criminal investigation. One of the officials reported an urgent concern about”

Trump's request for Ukrainian president Vladimir Zilinski to investigate then former vice-president Joe Biden. The whistleblower wrote, quote, "I've received information from multiple U.S. government officials at the president of the United States is using the power of his office to solicit interference from a foreign country in the 2020 United States election." Listers, you may recall, that the president characterized his phone call with Zilinski as "perfect." Gabbard, who alleged that "deep

state actors" had instigated the impeachment, also referred to the Department of Justice, a government official who was the former intelligence community, Watchdog, who had investigated the whistleblower complaint, and that his former intelligence community inspector general Michael

Atkinson. I have to say it is really rich to talk about the "deep state" when you're basically

in the sheep state, just blindly following what this president wants you to do, but whatever. Anyway, I just wanted to note that the ladies of hysteria, another crooked media podcast, have a series called "This Fucking Guy," and one of the most recent episodes is a deep dive into Tulsi Gabbard, and all I can say is the "T" is hot. It has cults. It has backstabbing. It has all the things. Chris Butler is a very interesting character, who is very interesting.

Like a lot of things going on, a lot of switching back and forth between parties, yeah, I actually, a lot of shade to the DNC. And multi-generational switching? Yeah, a lot of stuff. Yeah. It's a lot going on. Check that out if you have not. Another piece of news we wanted to just mention, might be of interest to our listeners, and that is some reporting that we got last week, actually from the Harvard Crimson, the student

paper at Harvard, which ran a very interesting story about the changing dynamics of the law school clerkship market. So clerkships, many listeners know, but in case you don't, are these one or two your jobs that frequently go to recent law school graduates, those clerks work closely with a judge in the judges' chambers. Historically, students are frequently hired for these clerkships at the end of their second year or the start of their third year of law school. And this process where

and judges wait until that point is the result of a very long and kind of starting stopping agonizing effort to instill some restraint in the clerkship hiring process, which is taking different forms over the years. Some people don't seem to be super into that whole restraint thing. Except for abortion, they care about restraint of judges when it's about the fundamental restraints on women. But any other restraint? No. So according to the Crimson, a two-tier

clerkship hiring process has emerged with conservative Republican appointed judges,

literally just got in the law school, who might not even have a full year's worth of grades,

“are being hired largely because the Republican appointed judges are prioritizing ideology”

in the clerkship hiring. Please also recall that many of these folks are among the anti-DI Pro meritocracy crap. And the best part of all of this is that at least some of the judges may not actually be doing the ideological sniff test themselves instead the Crimson reports that they enlist

ideologically aligned third year law students to vet candidates on their behalf. So a conservative

three-out vibe check is basically a smell test for at least some federal clerkships, but DEI. I'm not even surprised by this. So a few years ago, we interviewed California Supreme Court Justice, Goodwin Lou, and one of his co-authors professor Mary Hoops about their recent study of federal judges hiring practices in the clerkship hiring process. And they noted that they did not have a sufficiently large sample size to drop broad conclusions, but they did note that

their initial sample of some of the conservative judges showed that these judges were much more likely to prioritize ideological fit and hiring, and were much more likely to dive deeper into the class in terms of grades in order to be able to hire ideologically aligned clerks. And now it seems that the deep dive may actually just be wholly unnecessary. You don't even have to look at grades because some of these students, if they're one else, may just have a few years or a few months of grades.

And if they go to Yale, they don't have grades at all because no one gets grades in the first

“semester. So it's basically this three-out vibe check. Do we like you? Do you show up at our events?”

Do we get that conservative vibe from you? I have to say it sounds incredibly convenient and efficient. Basically, it's no grades, just vibes. Convenient and efficient if you don't, if you're not really that worried about doing law on your chambers, I'm sure, like just a purely ideological hiring process makes. But merit, right? But merit. Yeah, that's the good part. This is interesting reporting and good on them for doing it. I definitely don't know about YouTube, but noted that shift of some of

these conservative judges and only conservative judges as far as I could tell, like getting way ahead of the kind of previous hiring calendar, but it seems like it is just even more widespread than I'd realized. Okay, some other news to note. We got last week a verdict in the live nation ticket master anti-trust case. Listeners may recall that the administration, the federal government tried to torpedo the litigation by announcing a settlement midway through the trial, but unfortunately

for them. Unfortunately for consumers, the DOJ settlement did not actually succeed in killing the case entirely, because as actually is becoming a trend, some states including California,

“right, remember we had the Attorney General Rob Bonta on our show talking about this lawsuit”

among other things, and also New York continued to litigate the case against live nation/ticket master, even without the administration's participation. I mean, this is what we call federalism ladies and gentlemen. Yeah, federalism for the win, yeah, literally, because the states that continued to press litigation actually won, they won a jury verdict, holding ticket master, and its parent company liable for operating as an illegal monopoly that suppress competition

and inflated prices to the detriment of consumers. And we have to give a shout out to a bunch of strictees who were on the live nation, the ticket master trial team, they pulled off a win again, even after DOJ pulled out and settled. And I also wanted to quickly highlight that Gale Slater, who was the DOJ Andy Trust Chief, who left the federal government around the time of the Feds settlement, took to act to congratulate the states on their victory, saying quote,

"You made Andy Trust history today, you fought the good fight, you finished the race, you kept the faith." And I just really left that energy. It's almost like she didn't leave voluntarily. Oh, my God. Pure speculation. Pure speculation. But I do love, I do love a petty queen on Twitter. Indeed. In other frontiers of federalism, the Hennepin County Attorney has charged an immigration customs and enforcement agent with assault for pointing a gun at people on a

Minnesota highway. So Hennepin County Attorney Mary Moriardee said she believes this is

equally the first state criminal case brought against a federal immigration officer for actions

arising out of the Trump administration's crackdown on immigration enforcement and surges in California, Illinois, Minnesota, and elsewhere. She added, quote, "There is no such thing as absolute immunity for federal agents who violate the law in the state of Minnesota." And quote,

and tell her that practicing attorneys need to be careful when they talk about the law,

“just waiting for that statement." Science point, yes. Yes. Yeah. So this particular indictment”

charges the officer with two counts of secondary assault. The charges are based on allegations from a 911 call in which a couple reported that a driver in an unmarked SUV that turned out to be an ice vehicle pulled up, rolled down as window, and pointed a gun at them, and they were understandably terrified. The ice agent maintains that the vehicle may have cut him off. And of course, the ice agent assumed that this was some sort of obstruction. According to the ice officer,

he identified himself as a ice officer, but the couple just couldn't hear from inside their vehicle. Wanted to give a shout out to friend of the pod, Steve Latic, professor at George Town Law School,

also author of the one first street sub-stack who's written the lot about supremacy,

clause immunity, and how these state criminal prosecutions might work both on a sub-stack, and in the New York Times and other outlets, Steve catches a lot of strays just as a very prominent

“public intellectual from both the left and the right in just what I think are deeply unfair ways”

that reflect how good and successful of a public voice on the law he is. So if you, you know, like me benefit from Steve's work, maybe think about sending him a note to that effect or giving him a shout out. I think people sometimes see all of the benefits or upsides of being a public presence when the downsides sometimes seem less apparent, and this last week was just one of those occasions for me, you know, for Steve in particular. Can I? Yeah. I assume this will be taken

in the right spirit, but as I, yes, I totally coast on everything you just said, and it's like, when it's somebody else, you can sort of say, yes, obviously you know you that bitch when you cause all this conversation, like that is a sign of how central to the discourse he is if people are attacking him, but it sucks to be the object of that. And so I think it's completely acknowledged completely. Just as for commander of logic, exactly. All right, speaking of catching

“strays for being a public intellectual, we got an opinion in Chevron versus Ptockerman's parish.”

Yes, listeners, that was Chief Justice John G. Robert stepping in here on Strixford, and age of pronounce the name of this case, which as you have noted in our voice mail, emails has befuddled us all her and Melissa took that personally. So, if you listeners are from the Pelican state and you object to this pronunciation of occupants parish, please direct your emails and voice mail to Chief Justice John G. Robert's of the United States

Supreme Court. Thank you for your attention to this message. Anyway, the case is about federal officer removal. I really needed to do. We love a petty queen. I love a petty queen. Yeah, and you know, the federal officer removal statute could end up being significant in cases like the one. We just talked about the newly filed case in Minnesota that involved criminal charges against federal officers because the federal officer removal statute allows federal officers or people

acting under federal officers to remove from state court to federal court lawsuits against them. At least when the suits are four or relating to any act under color of such office. Now, this particular case is a lawsuit against certain oil and gas companies filed under federal law. The lawsuit alleges the company's lacked permits for some of their crude oil production, which is also alleged to have been initiated illegally. Chef Ron removed the case to federal

court arguing that the suit concerned its contractual duty to refine crude oil for the federal government during World War II. Hmm. So the Supreme Court in this case said that at this stage of the litigation, the oil company had plausibly alleged a close enough relationship between its crude oil production and the performance of its federal refining duties that removal to federal court was proper. The court made clear that the federal officer removal statute is broad and

allows removal, whether it is a connection between a private entity and a federal officer, so long as the connection isn't attenuated or tenuous. The opinion is effectively unanimous, just a Jackson filed a concurring opinion just concurring in the judgment, emphasizing both legislative history and the court's obligation to seek to discern congressional intent with citations to John Marshall making that point and also former

second-circuit chief judge Bob Katzman's work among other things. The only person who didn't

agree, or maybe did, we don't know, was Justice Alito who didn't participate in the case at all. We don't know why. I don't think. I mean, maybe presumably stock ownership, right, he is one of the only justices who owns individual stocks. But the doubt Kate, that's why he didn't participate, but the doubt, maybe he could just append that as the explanation,

very conspicuously, not Sam Alito. He is not to tell you anything,

“but you sure doesn't. All right. All right. On to April, previous. So this is the last full”

lump of oral arguments before the court. We have a two week sitting coming up. We are going to

preview the cases from the first week of the April sitting. All right. First up. So I don't know how

to pronounce this one. I'll just cop to it. And that is street pitch, maybe versus securities and exchange commission. I do know that this is a case about the SEC's enforcement authority, and specifically whether the SEC can require a defendant to discourage that is to give up profits or benefits without the plaintiff having to show that investors were harmed financially. Federal law provides that the SEC may seek an any federal court-made order, discouragement of profits or benefits

in a civil SEC enforcement action or proceeding in the 2020 decision, Lou versus SEC. The Supreme Court held that the SEC may seek equitable discouragement in civil enforcement actions if an award

“does not exceed a wrong door's net profits and is awarded for victims. Now some circuits,”

including the second circuit, have interpreted the statutory language through the lens of the

Supreme Court's discussion of victims. And as a result, have required the SEC to show that the investor suffered a pecuniary loss and is therefore a victim before the SEC seeks discouragement as a remedy. Other circuits, including the Ninth Circuit, have concluded that all that is required is an actionable interference with the investor's legal interest, not necessarily a showing of a pecuniary loss. So the petitioner here contains that to secure a discouragement order against

the SEC must prove that investors have suffered actual financial loss, not merely a misrepresentation or a manipulation. If the court determines that the SEC must prove pecuniary loss to a judge in order to impose discouragement, that will surely limit the SEC's flexibility in enforcement actions. And notably, there is an amicus brief in this case that highlights a similar case that is currently pending in the Ninth Circuit, SEC versus Barry. In Barry, the SEC's theory of pecuniary

harm is based on this idea of the loss of the time value of money. So basically the argument on which discouragement is predicated is that investors suffer a loss because their money is not being used productively as an investment. It's not about an actual pecuniary loss like dollar amounts. The novelty of the SEC's theory could heighten for the court, the skepticism they may have about expanding the scope of discouragement as a remedy. And if the court is skeptical, it might further

limit the agency's enforcement ability. So recall, this is coming on the heels of SEC versus Jarkacy, which made it a lot harder for the SEC to bring enforcement actions within the agency and administrative tributals. Next up is TM versus University of Maryland Medical Systems Corp. The Federal Quartz Hive rise. It's time to give you more information because it is Rucker Feldman time. Oh, yeah!

Oh, I'm talking about cause of all this conversation. Exactly, I'm a Feldman dad. Rucker, I don't even know where. I don't even know where. Oh, it's so up so good. Okay, so, Rucker Feldman, if you're not already intrigued, is a doctrine that prevents litigants. I know you are, obviously. I want to know, prevents litigants, listen up, Droneer, who lose in state courts from going

to federal court to challenge injuries caused by state court judgments. So the specific question here is whether that doctrine can be triggered by a state court decision that remains subject to further review in state court. The facts of the case are as follows. The petitioner here, TM, has a gluten sensitivity condition that can trigger psychosis. She was involuntarily committed to the Baltimore Washington Medical Center where she claims that

staff ignored her advanced medical directive and sought to forceably medicate her in ways contrary to that directive. After multiple state filing, she entered a consent order for her release, under conditions like monitored medication. She appealed that consent order in state court where the action has been stayed and she also sued in federal court alleging to rest and constitutional violations and seeking and injunction. I have a love hate relationship with this case, so I love

intricate federal court's doctrine. Oh, we know. Or it's just my absolute right. Okay. Favorite

“class to teach on one hand. On the other, this is going to be a case where I think the Supreme”

Court is going to say, "Roker Feldman applies," which is greatly going to undermine the lesson

I attempt to import to fed court students, which is the answer is never "Roker Feldman." Indeed,

name is "Roker" or "Feldman." Literally, that's aligned in a Supreme Court opinion because people

“you know, on earth this doctrine and they think, "Oh, that's what's happening in this case,”

but it's never happening except maybe here it is." Anyways, the federal court dismissed the suit

under "Roker Feldman." On the view, she was seeking federal review of a state court order. She said injured her, the force circuit affirmed. On appeal, the petitioner gestures too that earlier case, that suggested "Roker Feldman" really ain't nothing, Exxon Millbowl Court versus Saudi-basic industries, to argue that the "Roker Feldman" doctrine is confined to cases where the losing party in state court filed suit and federal court after the state proceedings ended. She further

argues that the force circuits decision below expands what was supposed to be a narrow exception to federal jurisdiction and the air of confirmed slightly to disadvantage, "Prosay litigants, I'm sure a majority of justices on this court will care deeply about that." That was a joke.

“For its part, the University of Maryland Medical System counters that the ruling below is”

correct and the petitioner was seeking a pellet review in federal district court of a state court decision exactly the circumstances where "Roker Feldman" would apply. Also, on the docket for the first week in April, it's federal communications commissions versus AT&T, and this is a case that has been consolidated with Verizon communications versus federal communications commission, and it will be heard on April 21st. This case might be understood as a follow-on to SEC versus

"Jarkacy," so that was definitely definitely. "Jarkacy" was the 2024 case holding that when the SEC seeks civil penalties, i.e. money damages, or other legal remedies against a defendant, the case has to be brought in federal district court rather than in an agency tribunal in order to comply with the seventh amendment's requirement of a civil jury trial for all

“suits at Common Law. In this case, the court has to determine whether "Jarkacy's logic”

extends to the fines," the federal communications commission levies for violations of federal communications law. The case stems from two consolidated appeals involving two telecommunication giants, AT&T, and Verizon. In two agency proceedings, the FCC determined that AT&T and Verizon had violated a provision of the Telecommunications Act of 1996 that requires telecom carriers to protect confidential consumer data, here information about customers' locations. The agency informed

AT&T and Verizon of the violations and issued an order advising the companies of the resulting

penalties, 57 million for AT&T, and 46.9 million for Verizon. Both companies had an opportunity

to respond and writing to both the determination of the legal violation and the order to pay the penalty. However, on appeal, the companies argue that these procedures don't comport with the seventh amendments requirement of a jury trial in a matter involving civil penalties. AT&T appealed its case to the fifth circuit, wonder what happened there, with regards to the agency. In any event, they argued at the fifth circuit, I'm on other things, that imposing the fine in an in-house FCC

proceeding violated the seventh amendments right to a jury trial, and shockingly, the fifth circuit agreed, throwing out the fine. Writing for the majority, Judge and Friend of Stanford Law School, Stuart Kyle Duncan, characterized the process as, quote unquote, "completely in-house with the agency acting as prosecutor jury and judge." But twist or really just circuit split, Verizon's appeal was turned. Turns out we got a lot of these chords, the fifth one way, the second

circuit upheld the fine against Verizon, writing for that court, Judge Allison Nathan, said that nothing about the commission's proceedings, transgress the seventh amendments jury trial guarantee. So, at oral argument, we predict that the justices will focus on the FCC's argument that in-house proceeding that leads to the forfeiture order is not a lawsuit, much less a lawsuit seeking money damages for purposes of the seventh amendment. The SG, who is arguing on behalf of the

FCC, maintains that there is no money at stake and therefore no obligation to have a jury trial, because the FCC actually can't require a carrier to pay a single dime. The only obligation to pay would come if the DOJ brings a lawsuit to enforce the forfeiture order and wins, and the carrier then does have a right to a jury trial, and that's something that's our emphasized in the brief and that I imagine will feature prominently in the oral argument. The telecom companies disagree,

they say that just because there is this like after the fact possibility of a jury trial,

that is not enough to satisfy the seventh amendment, they say that the Supreme Court has never

approved this basically penalty now, but have a trial later, approached the seventh amendment. They want a jury trial before the FCC issues a forfeiture order full stop. So, AT&T and Verizon,

that there has been a violation, and that they're not, you know, just like an initial preliminary

some might say, interim, you know, tentative suggestions, and, you know, they also kind of suggest that carriers treat the forfeiture orders as final in that they're not usually waiting around to see if the DOJ will attempt to enforce them. And the FCC argues that a ruling in favor of AT&T and Verizon, quote, "with seriously disrupt the commission's administration of federal communications,

“laws, forfeatures," it says, quote, "are among the FCC's most important enforcement tools”

without them, quote, "many vital rules," such as those protecting privacy, combating robocalls, and regulating broadcasting, would go effectively on enforced and quote. And Neil Gorsuch says, "Don't threaten me with a good time." More seriously, when Dr. Cassie came out, I had an article

in the Texas Law Review, the new substantive to process that basically described how the court

was refashioning the seventh amendment together with removal law based on this free floating idea of liberty that kind of resembled the old individual rights line of substantive due process cases, and this case seems like another kind of opportunity to take that and run with it. I do hope that this case will at least generate another iconic oral argument clip in Dr. Cassie, that was the Justice Kagan telling the advocate no one has ever had the hutspa to make this argument

“before. And he then put it on his website. Like Justice Kagan says no one has ever done this.”

Yep. I loved that for him. All right. On April 22, the court will hear oral argument in Blanche versus Lao. This case used to be captioned, Bondi versus Lao. Listeners, I just read that as Bondi versus Lao, and I have to say a little Freudian. Yes, indeed. Anyway, it used to be called Bondi versus Lao, but because Pamela Joe Bondi's legal career took a trip over the rainbow bridge, it is now captioned Blanche versus Lao. But don't get too used to this, Todd, by the time we

get an opinion here, the case will likely be captioned, Schmidt versus Lao, or Zeldin versus Lao, or Franzi versus Lao, and think it could happen. It's all out there. Anyway, this is a cremigration case and specifically the question presented is whether to deport a lawful permanent resident i.e. a green card holder who has committed a crime of moral turbitude or a drug offense,

“but was subsequently allowed to enter the United States, whether the government must prove”

that it had clear and convincing evidence of the offense when the green card holder last re-entered the United States. Lawful permanent residents in the United States are exactly what that term suggests. They are non-citizens. You have been granted lawful status to stay here in the United States permanently, so long as they observe relevant domestic laws. And once they have been granted that green card status, LPRs are permitted to travel in and out of the United States. And a

lawful permanent resident who is returning to the United States after a trip abroad is generally not regarded as seeking an admission into the United States because they have the green card, they have the permanent status, they have already been admitted to the United States in a permanent way. So here, Mook Choi Lao is a lawful permanent resident who has been living in the United States for almost 20 years. In 2012, he took a short trip out of the country and then returned to New Jersey.

Under the relevant immigration statute, he says he was not seeking admission when he returned.

He had already been admitted to the United States. The problem is that prior to his trip,

he had been charged with trademark counterfitting to which he later pled guilty and received a two-year probation sentence. On that basis, when Lao returned to New Jersey, an immigration officer allowed him to re-enter, but said he was being, quote, "proold," which is a discretionary decision to let immigrants into the country, rather than just being admitted without any strings because he was the subject of pending but not yet proven criminal charges. When he later pled guilty,

the government sought his removal as inadmissible because he had been hurled in, rather than the government pursuing the deportation procedures that are totally different and that would normally apply to a lawful permanent resident. So Lao contends that a lawful permanent resident returning to the United States after a trip abroad is not seeking admission and the immigration officer, therefore, should not have hurled him into the country but admitted him as with any other

lawful permanent resident. The government, on the other hand, contends that the pending criminal charges were enough to render him and admissible when he returned. The LPR statutes states that an LPR, who has committed a criminal offense, cannot claim the general, not seeking admission rule and both sides agree that a clear and commencing evidentiary standard applies to the parole determination. So Lao lost before an immigration judge and before the board of

officer at the airport knew when he marked Lao as hurled, was that some criminal charges were

“pending, the officer should have applied the not seeking admission rule. This means that an”

oral argument that justices will likely be focusing on whether at the time Lao returned to the United States from his trip abroad, the immigration officer had enough evidence to not admit him. The solicitor general argues that the government met the statutory standard, both at the airport in 2012 and now such that Lao may be removed. Strix scrutiny is brought to you by Babel. Why do most of us want to learn a new language? Well, it's probably not about memorizing

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Okay, tradition that we haven't always adhered to, but I'm just going to invoke here, and that is

the clip without context. So, why don't you play for you a recent moment during an oral argument that happened last week? Here you go. I don't know what's radical left about being antsy. Not see. Do you? You're honored. This is not about... There's nothing about being antsy. Not see. About being antsy. Not see, right? You're honored. This is not about whether anyone is antsy. Not because left about being antsy, not see. Judge Malette, this is not about being antsy.

“That's what you say. This arose in the Media Matters case challenging the retaliatory”

investigation of Media Matters' alleged retaliatory investigation after Media Matters called out the Nazi ads on Twitter. You will notice that the lawyer for the FTC didn't exactly answer the question of whether there was anything radical about being antsy. Is that a t-shirt? There's nothing radical about being antsy. Yeah, it could be. It's a little long, but I think it would be good. Okay, favorite things. You know, we are in the market for a new summer

drink. Some people in the crooked friends of the pod discord have suggested there is a dictator smasher drink that includes Ukrainian vodka, sweet vermuth and a little bit of orange bitters for an antiputin antitrump. I like that. But a member of the Trump administration actually floated another possibility that we wanted to give him credit for here. The straits of vermuth have not been completely reopened. Yes, the strait of vermuth. Interesting little Freudian slip there, but

well, this wasn't the strait of heroin off a toilet seat. Or, or right way penis. Because it wasn't heroin. You can't do heroin on a toilet seat. No, it's the cocaine. Okay, I'm glad. I'm like showing my ignorance. Yeah. But another one of my favorite things was going to be a story described in the book RFK junior, the fallen rise, which is by journalist isabel Vincent, who relies on a series of alleged Kennedy diaries and she maintains that RFK junior

once removed a dead rat coons penis to quote study later while his wife and kids waited in the car.

parked car on eye-sixity for cutting the penis out of a road-killed raccoon thinking about how

“weird some of my family members have turned out to be." And quote, by some of my family members”

he met himself. You know, I wasn't totally sure. For those of you listening, who might be affiliated with Georgetown, the Davis episode is released. On Monday, I'm doing an event at Georgetown, law school with friend of the pod, professor Steve Flatic about my forthcoming article in the Georgetown Law Journal, the passive vices. So, excited about that. Come see it. Also, wanted to give a shout out to the student editors who's great comments. Definitely have improved the piece. I hope

my updated revised version will post on SSRN shortly. Also, one last favorite ish thing and that is. So, I joined a case book for constitutional law a few years ago, and we are about to start revisions for a new updated edition. So, if you use what was the stone sidemen at all constitutional

law case book, I would love to hear from you whether one you teach the second amendment in your

comma class. And if so, how you use it, like, does it illustrate interpretive theory, or are you doing it as a substantive area of law? And also, whether into what extent you teach the first amendment in that intro to comma class, or that would be super helpful. So, feel free to email me. Yes, interpretive method, and no. Okay, super helpful. Thank you. But I don't use your book. So, bud, girl! Sorry. Maybe you need the new revision. We'll entice you.

Maybe the new revision will entice me. We'll see. All right, my favorite things include the book Lady Chermaine by Rachel Hochhouser. And if you've listened to my book recommendations

in the past, you know I love a book where they take a well-known story, but tell it from someone

else's perspective, like Longborn was told from the perspective of the servants in Pride and Prejudice. So, Lady Chermaine is the Cinderella story told from the perspective of the evil stepmother who twist is not that bad. And I kind of love that. So, I'm enjoying it a lot. I also had the pleasure this week of going to a concert with my dear friend Kate Shaw and some other friends. We went and saw West and Girl. And we really wanted you to be there, Leah. We had

our fans with your head on it, like with us. So, you were there in spirit. But I have to say, like Kate is going to say more about it, but the show really slapped. Although I have to save I were Lily Allen, I don't know that I would love spending a whole half a year going on tour

“reliving the breakup of my marriage. And I think that may have been why her demeanor was a little”

kind of like, she was fucking over it. I think she's over him and the songs. But she gave a great show. It was a great show. But it wasn't a Beyonce show. Like there was no one for her. Actually, when you listened to this episode, I will have gone the night before and I got my nails done for the show. I don't know if you can see. Okay. I can see those, there's blood on the, like, a little tennis ball. Oh, there's a tennis ball on your accent. And then the other hand,

it's like silver and accent nail with a tennis ball. And wanted to winery bag, but I just didn't think the details would really come through. So, it's going to be hard. That's good. That's okay. I also saw another concert last week. I went to Symphony Spaces, big annual Gala event, and it turned out to be an honor of Symphony Spaces, 50th anniversary. They decided to have Broadway singers sing the entire rumors by Fleetwood Mac album. It's one of my favorite albums. I fucking

love it. It's such a good album. Like, there's so many great hits on it. Fleetwood Mac was absolutely fantastic. And there was all of this great trivia in the middle. So, at one point, they noted that rumors has gone platinum, like 26 times or something crazy. Like, it sold more copies than both revolver and Abbey Road to huge Beatles albums. And this was the best, best bit of trivia. While rumors was being written and recorded, there were five breakups in Fleetwood Mac,

“but Fleetwood Mac only has five people. I think about the map. Isn't it four?”

It was five. You know, I think they're five. Oh, are they? There's Lindsay. Yeah. Christine, Stevie, Nick, and then Christine's husband. Oh, they're John, John, I think. I don't know what this name is. Um, yeah, I thought that was two and two. One more thing. I just want to say I went to USC out in Los Angeles for a workshop. I did the paper that Kate and Liana have. That's going to be forthcoming in the Northwestern Law Review. Got great comments from the USC faculty. Thank you so

much to all of the faculty members who showed up for that. And I got to meet some stricties in the

And then finally, my last favorite thing ever. And I know this actually happened two weeks ago, but I wasn't on last week's episode, but I wanted to just, I didn't know if you guys mentioned it, but I was so bullied by the site of Victor Glover astronaut moisturizing in space. And as a black mom, I'm like, yes, sir, exactly, because there's once this time when I was at a lot of Professor Conference, an Ellie Mastal, friend of the pod, shouted my name across the auditorium or wherever we

were and he was like, Melissa Murray and I'm like, what? What? He comes over to me. He's like, do you have lotion in your bed? And I was like, of course I do. He's like, I knew you would. You're a black

mom. And he was right. Like, we moisturized. Like, I'm always carrying lotion in case my kids need to be

moisturized. And Victor brought his own to space. He brought his, he was like, nothing's going to stop me from moisturizing. And I'm like, I, I feel you, Victor, I get it. I get it. Now, additional favorite thing. No, he doesn't. And additional Artemis 2 thing is the video of the astronaut Christina reuniting with

“their dog. So it weren't all Artemis 2 content was just like the best thing. And really, like,”

since January of last year, I think it's like, it has sparked the most joy. That crew is totally incredible. And also, or a reminder that government actually can do pretty incredible things. It's like the, especially when they use D, especially when they use D, especially when they do, because they can't, like, yeah, there's a lot of people could be astronauts. And like, yeah, it's, yeah, this, like, diverse crew, like, fucking delivered. Um, wait, duh, I don't want to

cut you off them. I'm sorry. We good. I'm done now. I'm done now. I'm done now. I just wanted to talk about lotion. Totally. And Victor Clevver. And the rest of that crew. Um, okay. So I want to plus one

the West End Girl experience with Melissa. The fans were amazing. I agreed that Lily Allen seemed,

I didn't know if she was like, just a little tired or like, a little just over it. I couldn't quite tell. But it was like, it was, um, we're both. It was an understated performance, but the songs were great. And the fans were amazing. And they were not understated. The Colin response, they, at the end of the West End Girl, like, this first song, an album, which he's doing this, like, one-sided phone conversation, there was, like, a lot of gap filling by energetic numbers of the

audience that I love. He doesn't deserve you. It's straight to your things sucks. Both of those things were uttered in, um, radio City, music call. So he read it. He's great. Um, okay, a couple of the things. The song, what I want, which Leah, you recommended on the emergency episode that you do with Shannon Mentor, um, by Moona as editor of the band, the artist is, oh my god, that song is so good. Um, and so is the entire catalog of Moona, which I did not know, and thank you for bringing

that into my earholes. The novel playground by Richard Powers. I read and melody and I have had a back and forth about it. And I feel like I can't really say anything about it, um, because like it's almost impossible to talk about it without doing some spoiling, but it was fascinating and people should read it. Japan, I was just there for my kid's spring break and was the had the most

amazing time and absolutely loved it. Um, had never been to Japan, had never been to East Asia at

all, like, I just really want to go back ASAP. Um, and we, I had to because I missed two episodes,

“did you guys talk about the times? I think I've listened to every minute, but then maybe I missed”

something that reporting completely bananas reporting on the investigations into sexual misconduct at the labor department. Okay. This is maybe a weird favorite things. Um, but I will say that I definitely read it more wrapped than any other investigative reporting since the times broke some of the aspects of the Christi-Nome Cori-Lundowski scandal. I mean, this is just like a new set of completely bonkers allegations of misconduct, including sexual misconduct at the labor department. Like so we

already knew that there had been a number of departures from the labor department, including of the secretaries, director of advance and a member of her security detail with whom she was accused of having an affair, but new revelations suggest that there has been inappropriate text messages sent by the secretaries, both husband and father, including to the same young female staff member. So this is just an allegation of multi-generational sexual harassment of a sort that I was

“personally not familiar with. And I just like, there is no bottom. I think is the takeaway.”

So people should definitely read that truly jaw-dropping story from the times if they hadn't. That's a rough note and on. Yeah. Also all Artemis to contact. Let's do it. Let's try to add some actual potential favorite things. Okay. Okay. Exciting. Okay. Do you have any ideas? I mean, I do. So as we have mentioned before, June is bad decision season. And so we are launching a copium, which is of course going on the road as part of the bad decision tour. So we will be live at the

And the tickets are on sale now. Grab them while you can at crooked.com/events. For those of you who

“don't know, I bring special custom shirts to our live shows as part of the VIP meet and greets.”

We always love meeting stricties. That time is just sure to be a wild time at the court. So

you can also get books signed. Yes. So that's the U.S. Constitution. It's comprehensive and annotated guide for the modern reader. If you're not modern, don't buy it. Not for you. If you know

not modern people, maybe get the book for them. If you're aspiring to modernity. Exactly. This is

“the book for you. That's what I also do. Yes. That's actually also the week that the paper”

back version of my book will be out. So you can get it freshly signed. And yeah, so be sure to get those tickets and come to the show.

“Stokes here at me is a crooked media production hosted and executive produced by Leah Lipman,”

Me Melissa Murray and Kate Shaw. Our senior producer and editor is Melody Raule. Michael Goldsmith is our producer. Jordan Thomas is our intern. We get our music from Eddie Cooper and production support from Katie Long and Adrian Hill. Matt Degroot is our head of production and we are really grateful for our digital team, Johanna Kase, Kenny Mothet and Eric Shoot. Our production staff is probably unionized with the writer's guild of America East.

And if you haven't already, be sure to subscribe, district scrutiny and your favorite podcast app

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