Supreme Court Declares Racism Over

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Let's keep the test at least for it. It's no joke, but when I argue, man argues against you beautiful ladies like this, they're going to have a last word. 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

for fun at this." [Music] Struck student listeners

“after we finished recording late on a Friday evening,”

the fifth circuit decided it was time for slapping some additional restrictions on the paparistone, one of the two drugs used in the current medication abortion protocol. Because what gives separation of powers

more than lower courts second-guessing

expert agency determinations? Why not? Why not? That separation of powers to me. So in a breezy 18-page opinion released after 5 p.m. Eastern, which is how you know

they were trying to sneak one past the country, not going to work on us. Stanford Stormtrooper, Kyle Duncan, wrote for that store, Kyle Duncan, my apologies.

wrote for a unanimous panel of judges to assume including himself or Trump appointees that the Food and Drug Administration was wrong, to allow telehealth, telemedicine prescriptions

of mythopristone, one of the two drugs used again in the current protocol for medication abortion. Every time you say Stuart, Kyle Duncan, I think of Duncan Donuts. [Laughs]

I do every time I say Stuart, Kyle, Duncan, my uterus shutters. But this latest decision reinstates the in-person pick-up requirement for mythopristone, which forces women to go

in-person to a doctor or licensed nurse practitioner in order to get mythopristone, which of course makes medication abortion way more difficult to access for people and states with abortion bands

because now they have to travel out of state just as they would if they obtained a procedural abortion. The fifth circuit reported to issue this ruling such that it has nationwide applicability. That is to say the court issued

what is called a vacator or a state of the entire telemedicine determination. This is a procedural maneuver that blocks the FDA's decision on a nationwide basis. That procedural machination makes it

as if the FDA's telemedicine decision didn't even exist. So this decision will have devastating consequences for women, especially women in states with abortion bands. In 2023, 65% of abortion were medication abortions.

Medication abortion accounted

that were provided in most of the states with out total abortion bands in 2023. And again, if you can't obtain mythopristone via telemedicine, you have to do so in person.

And many women just are not going to be

“in a position to undertake the out-of-state travel”

if they live in a state with an abortion band, whether that's because they lack transportation. Time-off resources support or any other number of reasons. And to be very clear,

medication abortion is many times more safe than actual childbirth. The risk of maternal death associated with childbirth is approximately 14 times higher than the risk

associated with medication abortion. And that number goes up even higher for women of color and black women in particular, but there's no racism. Remember that from this week,

there's no racism.

Medication abortion is basically about a safe

as Tylenol, but now the fifth circuit has made it a lot harder for individuals who want to control the reproductive capacity to have access to it. The fifth circuit's decision is stunning

for a number of reasons. It is a judicial order to impose restrictions that the FDA, the Food and Drug Administration, deemed unwarranted. The decision also uses the Trump

“administration's abandonment of reproductive rights.”

The Trump FDA's baseless suggestions that it just wasn't totally sure that Tylenol medicine was safe for medication abortion as a reason to issue this nationwide stay. And the decision leans into something

we have talked about before called fetal personhood the idea that fetuses are people entitled to rights. That theory would mean that abortion has to be banned nationwide by order of the courts because if fetuses are people

then abortions would deny the fetuses their constitutional rights. We'll obviously have more to say about this late Friday night ruling in our next episode.

But for now, we just want to emphasize a couple of points.

First, we want to emphasize how

there are so many aspects of this particular decision that make all of this look a lot like colusive litigation as if the Trump administration took certain actions and made certain statements in order

to lay a pathway for this judicial decision imposing nationwide restrictions on Mifopristone. So that's one point.

“We're not saying that there's actual collaboration going on here”

between the Fifth Circuit and the Trump administration, but we are certainly saying that the Trump administration made it infinitely easier for the Fifth Circuit to have a glide path into this decision.

And basically, they gave them a rationale like supplied a rationale for this court to do this. And that's pretty useful to the administration because it means they got the abortion restrictions that they may have wanted

without having to announce that they were imposing them on their own initiative rather than having the courts do it.

So the second point we will emphasize

is how there are aspects of the decision that are just IV-dripping fetal personhood into their veins. These guys are leaning wholeheartedly with their whole chest that under the law

fetuses are people in ways that alter the court's legal analysis. And again, if fetuses are people, under federal law and in particular under the constitution, then the constitution itself imposes an abortion ban

or so federal courts might be obliged to announce. So there's that aspect of it as well. Let's tick through some of the elusive aspects or what we think look like elusive aspects of this litigation. The parts where the Trump administration

basically facilitated the court doing this may be not in fact, but certainly they laid a pathway for the court to do this. In justifying their decision, the fifth circuit relies on the fact

that quote in September 2025, the FDA began a comprehensive review of Mifropristone, including the 2023 Rams. And the court notes that quote "when announcing the review,

the FDA conceded the quote lack of adequate consideration underlying the prior Rams approvals." In other words, the Trump administration in that 2025 announcement

was posturing and making statements about the 2023 Rams that actually would then make it easier for the limitations on abortion that the fifth circuit is imposing now.

It's absolutely bonkers that the government made that kind of concession on the eve of this litigation. But here we are.

And it's somehow even worse than that because the fifth circuit notes that quote, "FDA's response" that is their response to the court does not address the merits. IE weather the FDA's removal of Mifropristone's in-person

dispensing requirement was arbitrary and capricious. IE the FDA effectively conceded that the district court was right to say that the challengers

were likely to succeed on the merits in challenging the ability to get Mifropristone via telemedicine. Now, the district court had none the last denied a stay because it concluded that the balance

of the equities and public interest cancelled against judicially imposed nationwide restrictions on Mifropristone. The court also relied on the FDA in explaining why the quote-unquote public interest

weighed in favor of imposing these new restrictions. So the court notes that quote,

the regulations were marted

by procedural deficits and a lack of adequate consideration."

“So on the second point we wanted to emphasize”

and that's fetal personhood, it's all over the opinion. So explaining why the public interest favors this stay. The court writes quote, "Dankos." That's the manufacturers.

Potential financial losses pale beside Louisiana's sovereign interest in its laws protecting the unborn. And explaining why Louisiana would be irreparably harmed without this stay. The court writes that the FDA's policy

"underminds its," that's Louisiana's, laws protecting unborn life. And quote, "Once lost, that sovereign prerogative of protecting unborn life cannot be regained

by legal remedy." And it's almost like these judges read the Jodie Cantor Adam Liptack article from last week was like, "You know what?

When the government brings something

in request to stay, they're always

irreparably harmed if they don't get it." And they're like, "You know what? That might apply to Louisiana too." Not the federal government, but Louisiana. Just think about it.

All of this is incredibly, very fetal personhood forward. It's kind of terrifying in many ways that the next frontier in abortion restrictions is really going to be

about courts ordering states in the federal government to ban abortion either on this theory of fetal personhood entirely or some combination of fetal personhood

in tandem with weird questions

“about the safety of these particular medications.”

The other thing I want to note about all of this is this is so much of a departure from what the court was saying and dobs when they just said they were going to settle this abortion

question once and for all. And I'm just steering in Rachel Rubisje

David Cohen and Greer Donnelly

who wrote that brilliant paper the new abortion battle grounds. And it's like, "This is not settled. This is going to be new stuff and they predicted all of these fights

over abortion pills and telemedicine." So, you know, there's that. You might also be wondering listeners, "This nationwide ban

on Miffa Pristone" that sounds a little bit like a nationwide injunction. I thought the Supreme Court put a halt to the practice of lower federal courts issuing nationwide injunctions

and Trump versus Casa Well, that's a very fair question. But the court issued a stay here under five USC section 705, which is a federal statute governing judicial review

of agency actions. And so, the fifth circuit says that Casa was different because it was about federal court's equitable authority

under the judiciary act of 1789. And in their defense, in Casa, the Supreme Court dropped a footnote

“saying the no nationwide injunction rule”

didn't necessarily apply to decisions vacating an administrative agencies rule under the APA. I love when their little loopholes that are intended to make you feel better

about things they're closing off, actually work the opposite way to really fuck you as ever, as ever. Lovely. So, a few other quick reactions to this opinion, which came

out an hour before we recorded this. One is, in some ways, the math wasn't mathing, or at least not in the way the fifth circuit suggested it did. So, the fifth circuit wrote that quote,

"The record shows that the policy that is telemedicine now facilitates nearly 1,000 illegal abortions in Louisiana per month." Now, the fifth circuit treats that as an injury,

but that kind of captures just how consequential this ruling might be, affecting potentially 1,000 Louisiana women per month. And that's just in Louisiana.

Additionally, consider that statistic, the 1,000 women per month, against part of the court's standing analysis, where the court suggested Louisiana was injured because it paid Medicaid costs for

two women who needed emergency care caused by a miffapristone complication. Let's see, two women, either emergency care, one thousand abortions per month,

since 2023. You think that shows a significant risk of injury. I'm not so sure. Also, we have no idea if those injuries were even caused by the telemedicine

aspect of miffapristone, or whether they would have been prevented by an in-person pick-up. And kind of logic, stop you, though. Exactly.

What is standing to get in the way of a good time? There was also just something supergrading about the court talking about Louisiana, a sovereign injury, not being able to enforce its abortion ban,

like its sovereign injury, and not being able to control and subjugate women. And other parts of the opinion, including on exhaustion,

that is whether the plaintiffs had raised this argument to the agency, the court relied on its previous decision in Alliance for Hypocratic Medicine, where it notes true, those decisions were reversed on standing,

but their reasoning on exhaustion was persuasive. Not to say we told you so, but this was part of the danger when the Supreme Court punted

on medication abortion in the Alliance for Hypocratic Medicine decision. Remember, in that case, the court said that the anti-abortion

to challenge the relaxation of restrictions on Miffapristone

“or the overall availability of Miffapristone.”

But it left on the table all these crazy merits rulings that the lower court and the Fifth Circuit had issued. And they were just waiting to be brought back with the vengeance after the 2024 election

of the Republican controlled states stepped into the breach. They're kind of like trigger laws, like trigger precedents, but just like lay there and waiting. There are no new ideas that just keep farming

them to different contexts. We should note that just because this nationwide ban on Miffapristone has been issued, that doesn't mean that medication abortion

is entirely off the table. As we've noted on this podcast before,

the second drug on the two drug medication abortion protocol,

Miso Prostone, is also available. Obviously Miffapristone is the preferred method. The two drug protocol together is the preferred method, but Miso Prostone by itself would also suffice.

Although there are different responses and reactions to that that doctors have noted. But this is a devastating decision, even if there are available alternatives. And it makes very clear that the war on abortion,

the war on women's reproductive rights, continues a pace. This hasn't been settled. Dobs has not ended.

“This, in fact, I think it's only accelerated it”

in a lot of ways. And this very, very safe method of reproductive care, which is used not only for those seeking to terminate pregnancies, but those who need it for Miffapristone management. And literally one in three women suffers a Miffapristone

and loses a pregnancy and requires this kind of medical care. All of that is on the table right now with this new nationwide ban imposed by America's worst circuit court. Now, there's a chance that the Supreme Court will stay

the fifth circuits stay. I mean, we are all, after all, getting ready for the midterms. Probably not super convenient to have abortion put back into the spotlight.

But I don't know. When you don't have all those black people voting, you might as well. Tanks. Yolo.

Yeah, no. We shall see. We shall see. I think Clarence is like, let's go for it. Let's let it ride.

He's always like, let's go for it.

Let's let it ride. Indeed. Thanks for listening. As always, and now back to our regularly recorded episode. This episode is sponsored by Better Health.

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then full price plan options are available. Taxes and fees are extra. Seem Mint Mobile for details. Hello and welcome back to Strict Street Me, your podcast about the Supreme Court and the legal culture that surrounds it.

Where your host, I'm Melissa Murray. I'm Kate Shaw. And I'm Leah Lipman. It's a very special day, really very special week because happy early book release to Melissa Murray.

Her book is officially out tomorrow. If you are watching this on YouTube, you can see Melissa displaying her book. Me proudly wearing the merch that I made, Kate also displaying. And it's a constitutional AF merch if you are not seeing it with your eyes.

This is really nice. So that's a huge knockout time. The perfect time to get your copy of the Constitution, a comprehensive and annotated guide for the modern reader. So for the unmodern readers, some people don't need it.

You can show your least favorite Supreme Court justice. How to read. And don't worry, we have a very special episode for you next week that focuses more on Melissa's new book. But in the meantime, what a perfect occasion

to help democratize the Constitution and empower more people to make constitutional claims, as part of an effort to correct the constitutional claims being made by the people in power. And part of what Melissa's book, again, out tomorrow,

gets into is the real and rich and radical history and vision behind the reconstruction amendments

that Sam Alito basically wrote out of the Constitution

in the Voting Rights Act opinion last week. Additional great timing last week, six justices, no points for guessing which six, the Republican appointees, the ones in the majority in the immunity decision,

attended the state dinner for King Charles. Making no secret of their insatiable thirst for kings. Melissa's book by contrast has more no kings energy, which these guys really need. Yeah.

I do want to just drop an asterisk, though, which is to remind our listeners, especially those who like book for television and radio, that Melissa should be everyone's go to expert on all things royal because she knows literally everything about them.

“And I think that is just one of the many reasons she understands”

and can so eloquently explicate why we should not be ruled by them. Nicole Wallace knows now. Thank you for that very generous introduction. I will just say I love that this book is coming out on May 5th, Cinco de Mayo, so you can just pour some salt on it,

lick it and do body shot, whatever you want. Anyway, let's get to, hello, I missed you guys last week. I'm back. Like what, girl. But we can throw into the blender and make margaritas.

That's another way you can pause. A lot of ways. You can check it. Do whatever you want. Just in any form.

But use your pre-alcohol first. Okay, let's get down to the business. In this episode, listeners, we are going to recap last week's oral arguments with a focus on the challenge to the administration's cancellation of temporary protected status for Haiti and Syria.

We'll also touch on some legal news, including what we learned about ball rooms and national security. I did not know about this apparent relationship, so, you know, news to me. But obviously, I'm here to learn whatever. It's huge.

Just going to put that out there. We are also going to discuss how some intrepid federal judges are turning the unitary executive theory against the administration that is apparently obsessed with it. And I just want to say, master's tools, y'all.

You love to see it. It's great. Obviously, the thing we really do need to talk about is the fact that last week, the court issued the huge voting rights act opinion in Louisiana versus Kelly.

Leah and Kate, you did an amazing excellent emergency episode on the case

Louisiana versus Kelly with special guests in front of the pod, Mark Elias.

“Listeners, if you have not downloaded that yet, what are you doing with your life?”

If you don't say, I'm fighting for a multi-racial democracy that is the wrong answer. Get it together. Download this. It is absolutely excellent. If you're still bare in your head under your pillow, I think that that's okay.

Actually, but it's time to come out. Don't despair. Prepare. We have rise. This is the time.

Obviously, there's still a lot more to say about the collet decisions. So listeners, if you'll indulge us, we are going to say a little bit more about why this opinion is so catastrophic. We will also note how the decision in Kelly literally set the stage for the court's

announced the Kelly decision. And that is not all listeners. We are also going to go over the court's opinion on administrative subpoenas in First Choice Women's Resource Centers Inc. versus Davenport.

“You may remember that it used to be called First Choice Women's Resource Centers”

versus Plotkin. Same bullshit, though. Don't worry. And same court. So there we are.

But first, I have some more thoughts on collet. I think Kate has more thoughts on Kelly and Melissa, since you couldn't join us for the emergency episode, we wanted to make sure you had a chance to share yours as well. I want to talk more about this decision in some ways.

Feel like we should always be talking about it just because it is so significant

and so warping our democracy at light speed in real time. And the decision that effectively nullified the voting rights act and its redistricting protections that ensure political opportunities for minority voters is as we attempted to convey really bad for democracy. Also, multiracial democracy.

Also, voters of color.

“But it's bad for democracy, and I think people need to realize that because it”

allows white elected officials to protect themselves from electoral competition. That is anti-democratic. Effectively turning the House of Representatives into the Senate, where states just send one party delegations to the House, replicating Senate maliportionment. And in my fury on the emergency episode, I am worried a few points didn't come

through clearly enough. And since this is our podcast, I am allowing myself to make them more clear. This might be a recurring segment, honestly, for like the next two years. So brace yourselves. One is just the extent to which this decision will, in Justice Kagan's words, quote, "lay the groundwork for the largest reduction in

minority representation since the era following reconstruction." That is because the political opportunity, majority minority districts, that stand to lose their protection are many of the districts that elect black and brown political officials. The decision is a way of resegregating our institutions and politics.

Although, you know, the percentage of black voters, you know, increased markedly after the initial passage of the voting rights act, it wasn't until the 1982 amendments that Sam Alito read out of the voting rights act that the percentage of black and brown representatives really increased. And the second is the extent to which this decision parallels the aftermath of

reconstruction, which led to the election of black political officials, to state and federal offices, but the demise of reconstruction, which the Supreme Court aided and abetted meant the number of black officials

in Congress was never above single digits, and was most frequently somewhere

between zero to two, including in states like Mississippi where the black population was 35% never sent a black representative to Congress during that period. And it was the voting rights act that changed that. Can I take a beat on that? I know you're talking mostly about the House of Representatives.

“I think it's even as stark, more stark when you think about the Senate.”

Immediately after reconstruction, there were two black senators serving in the upper chamber of Congress. So the first was Hiram Rebels, who was chosen by Mississippi lawmakers to serve the remainder of a Senate term. This was the term that had gone on while Mississippi had seceded from the union.

And so by the time they decided to let Hiram Rebels be the senator, there's like a year left on this term. So they're like, yeah, I want to take that year and be a senator from Mississippi. And so Hiram Rebels went to the Senate and served from 1870 to 71 faced fierce opposition to his seat.

They challenged his citizenship status, inverting to dread Scott. I mean, make it make sense. He took the oath of office to serve in the Senate 22 days after the ratification of the 15th amendment.

And abolitionist Wendell Phillips said that Rebels was quote "the 15th amendment in flesh and blood." I mean, literally, this is what this amendment was made to do.

The second senator was also from Mississippi.

This was Blanche K. Bruce, who represented the Magnolia State in the Senate and was the first African-American to serve a full term in the U.S. Senate. He served from 1875 to 1881. Notably reconstruction ended in 1877, with the Hayes Toldon Compromise, and obviously he leaves the Senate in 1881.

And there isn't another Black senator in Congress until 1967, two years after the Voting Rights Act. And again, even with the VRA, in that period from 1965 to today, there've only been 12 Black senators in the Senate. I mean, so this is progress, but it's slow, it's incremental,

and the Supreme Court basically put the cabosh on that limited progress. Unless there's massive change, what the Supreme Court has said in motion is a period of retrenchment that is going to parallel the post-reconstruction period of retrenchment. And it feels like that's by design.

Yeah, re-segregation, Jim Crow, or as I just sputtered out with Melissa and Emma Snow, Jim Crow Lido.

Yeah, exactly, either any works.

“And still, I just don't know if those numbers adequately convey”

how consequential and awful this decision is. And it's been frustrating for me feeling like the world and the country is just like not sufficiently outraged. The New York Times has an excellent series of articles on this with graphics, if you're more of a visual person.

But I'd encourage everyone to check out illustrating, again, the significance of the Voting Rights Act to making Congress representative. And of course, in the wake of the decision, as they knew what happened, states are already clamoring to a race, political opportunity districts, and political representation.

Totally. The Florida legislature approved a new congressional map intended to maximize Republican advantage in the state as part of this broader national redistricting battle. Louisiana's Republican Governor Jeff Landry issued an executive order

that delays house primaries, though not Senate primaries, until July 15 or until such time is determined by the legislature. The elections in Louisiana had originally been scheduled for May 16, but the June 27th runoff date. So that is happening.

“I think your favorite Senator Kate Marsha Blackburn,”

Tennessee made some mistake. She said it on this. She sure did. She was like, this decision is going to help Tennessee stay red. I mean, was that the point?

I think it might be, saying the quiet part out loud, Marsha. Marsha Marsha Marsha Marsha. There's a movement and possibility in Alabama as well. So I guess we honestly don't know what the full fall it is going to be. And it could be with which they are doing this.

It's just like, it's just like Sheldonny. But it also just is a little just declared racism is over. Right. And of course, they knew this was going to happen. It's such a cowardly, craving decision.

And again, this is happening.

And just to remind folks, right, like in 2013, when the first time

this Supreme Court declared racism over in Sheldonny, literally later the day the opinion was issued, states started moving to implement restrictive voting laws. They would have had to get pre-clear under the pre-Sheldonny regime. But I'd cart blanche to kind of move forward with after Sheldonny.

We were seeing that replay right now. And I also think, you know, it is a mistake to think just about what that impact on the 2026 map will be like obviously, you know, Lee and Melissa are talking about kind of democratic impact more broadly. It may be that a handful of states decide that because the 2026 map

is already going to be really tough for Republicans redistricting might actually backfire if they're going to make more districts that are more competitive. So I don't actually know at the end of the day how many new legislative districts they're going to be in 2026, but I do think between 26 and 28, there's no question that they're going to draw out to the maximum extent possible.

Black and Latino representation in Congress and access to meaningful democratic participation. And it just might take a few cycles for that to fully play out. But again, absent some major course correction, that is the path that we are on. Let me just maybe mention a couple of other things about the opinion at that. Okay, because the kind of emergency episode was like, you know,

in the heat of speed reading and hyperventilating and then podcasting and like, I at least did not read the opinion as carefully as I subsequently have. So I just like wanted to flag a couple things. One is something that others have mentioned, but we haven't on this show, which is that Sam makes this insane claim like black voters,

or just a paid in elections at similar rates as the rest of the electorate. Okay, that's not the insane part of the claim. This is turning out at higher rates than white voters in two of the five most recent presidential elections nationwide. Okay, so he says that. Obviously, if you listen and sort of think about it for 30 seconds, the two elections in which black turnout exceeded white turnout were the two elections,

in which Barack Obama, the first black president, was at the top of the ticket.

And those two elections also occurred before the court's decision in Shelby County. So to suggest that that is this kind of silver bullet evidence that racism is done and racism in voting is definitely done is so unhinged. I kind of can't believe that his law clerks and colleagues let him get away with keeping that statement without explication in his opinion.

You know, this is standard for this court because it shall be county versus holder. The Chief Justice is the same fucking thing and was like, you know, like there have been massive numbers on black people voting. I'm like, yeah, because there's like a black dude on the ticket. And everyone got super excited.

Yeah. Like, there are no new ideas. So no new clerks, no new ideas. No, this is a lot of recycled logic from Shelby County. But it's salmon.

So it's been somehow infinitely worse because everything he does is. And sneakier. Like, it shall be county, at least had the decency to, you know, not justify itself in conventional legal reasoning. But say we are invalidating part of the voting rights act.

Sam is much neeker. So he says we're not. Of course.

“I'm not going to give you like, I thought Shelby County was sneaky as fuck two, right?”

I mean, so yes, they're like, we're just invalidating the pre-coorded formula. The prisoner was just wrong. Yeah. But like, we know Congress isn't going to write a new formula.

So we're basically fucked up.

Section five anyway. So you're right. They tried to be sneaky there too as well.

What are you trying to say?

In addition to being sneaky, he preserves it so it can be used against democratic commanders. Right. So they can bring intentional discrimination claims against majority block districts. Right.

That's why he doesn't keep it. Yeah. Yeah. This is like the due process. Like we're going to keep the due process.

I'm going to tell it entirely. So when we get to fetal personhood. Right. Totally. Yeah.

Which is a point. We've obviously made about dollars. Clarence. Keep it down. Yeah.

Yeah. Anyway.

I don't even know what to add to this.

Other than I told you so. Yeah. I mean, I caught so many strays when I said that. Just like reminding you. I caught so many strays.

And I said, Alan versus Milligan was not the last word that they were just like. They couldn't do it 10 years after Shelby County. So they'd wait a while. Here we are. These schools will stop it nothing to fully decimate the legislation that people literally

were beaten and killed in order to enact. I mean, just absolutely insane.

“And I think the thing that is most stunning to me is the absolute cravingness of it.”

Not just the insistence that they are preserving. Section two when we know that they are not, but that, you know, they are preserving it. So it can be used in this way against minority voters, against democratic voters going forward. And because they know they're going to catch a whole bunch of flack for killing the voting rights. I mean, this is like Casey where they said, you know, we're preserving the central tenets of row.

And then they really just they, they hollowed out row so that was enough of itself.

Same kind of thing is going on here.

Like they're trying to preserve themselves. And they've done, I guess, a good job of it unless people stay on their next and keep saying, you, you killed the voting rights act. You, you just killed section two. And I, I think we have to say that.

I'm stunned by the Craveness of the Chief Justice who is in the majority in Alan versus Milligan, where he lauded the remaining shards of the voting rights act. That he damed to allow to exist after Shelby County. And now he's fully on board with the majority in this case. Like, you know, it was only a few years ago, like why the difference, sir.

And also stunned by the Craveness of allowing Sam Alito to write this opinion. Shout out to the colleague who told me Shelby County was justified because of Alan versus Milligan. And that was only possible to write a decision like Alan versus Milligan in light of Shelby County. And I was like, what, just be your head against a wall. Anyway, I'm also disgusted with Congress, including the Democrats.

Because for years, civil rights advocates, black people have been saying that this was coming, that the Supreme Court was intent on dismantling voting rights. And that they would stop it, nothing to do it. And nobody did anything, right? When I sat on MSNow and asked a member of the Congressional Black Caucus,

how the Congressional Black Caucus plan to respond to this particular lawsuit, the answer was to file litigation. I was like, I was on there with you, and I almost lost my rocker.

“It's like, litigation that will go up to this court to say, I'm like, is that the plan?”

That can't be the plan. But that apparently is the plan. And, you know, I just, I can't. Last night, this, we're, we're recording on Friday. So Thursday night, I was at an event celebrating the Centennial of the Shomburg Center,

for Black Research in Harlem. And the Shomburg Center is an arm of the New York Public Library, and it's devoted to the preservation of black writing, art, research, and culture. And Senate Minority Leader Chuck Schumer was there, and he spoke, and it was literally all I could do, not to stand up, turn my back, and walk out.

He spent nine minutes loading the contributions of black people to this country, and this culture. After he spent the last nine years letting this court chip away at a law that Congress enacted and reauthorized for years and years and years. And in addition to that insult, he pronounced the name of Ed Weesh Dantacot,

the award-winning Haitian American novelist, who was honored at the event. He pronounced it Ed Weesh Dantacot. Her socks, her read a book, read any books. And so I'm just mad at everyone. That's fair.

Me too. I'm a bipartisan rager right now. Just nervously so. It was so clear that this was going to happen. I literally wrote it into the version of my book that came out last year.

Right. And then updated it with more confidence for the paper of effort and coming out in June. Like it was obvious, right? They were going to do this anyways.

Okay. Is that something over? Should we move on to argument? We should. But I do think that let's put it in the idea of like just five

ranting minutes about Kalei at the beginning of every episode. At least for the next few weeks. I think that's. Or at some point in an episode. It doesn't have to be the beginning.

Okay. Or at some point.

“Do you remember when we were talking about like how would we revamp”

after Trump 2.0? We would need you and like I suggested maybe a recurring segment called Doosh of the Week. Where we just talked about someone we hated. And you were like that.

It's kind of a downer. So instead we decided to do favorite things. Maybe it's time for Doosh of the Week. I like the direction. I just I also like the focus on Kalei.

Exactly.

“Like that decision needs to become part of the lexicon”

as we were suggesting. I mean, we got a bad decision story coming out. Let's just put it on the theater. That's fair. That's fair.

Update the show. Okay. All right. So stay tuned for the next installment of that. Whatever it would ever it turns out to be.

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Now we're going to shift to argument recaps. So the day the Supreme Court announced that racism is over so that the voting rights act would no longer prohibit legislatures from discriminating against black voters, so long as black voters tend to vote together for Democrats. The court also got to noodle over whether the president's statements about excluding people from

shithole countries, making horrific lies about how Haitian immigrants are eating cats and dogs, and general talk about the blood of the nation were racist. The solicitor general says no. So yes, the court heard argument in Milan versus Do and Trump versus PO as a reminder. These are the challenges to the revocation of temporary protected status for Haitian and Syrian nationals.

As we mentioned in the last episode and as Leia just alluded to, the president and senior administration officials have maligned and vilified Haitian immigrants, in particular, and apparently decided to cancel TPS for Syrian nationals based on extensive analysis reflected in a single email, and oh, maybe Brett Kavanaugh's musings about sort of the geopolitics of the new regime in Syria. Seems like that is what drove the administration.

So the question is, can they do that? The government is arguing that it can, the argument proceeds as follows.

First, that the revocations are unreviewable, meaning that the executive branch can do whatever it wants

in any congressional limitations on revocation and protections for TPS holders are absolutely unenforceable. Do you know what that's giving? Monarchy.

Yeah. Yes.

The government is also arguing that the president definitely totally had reasonable rational

and unbelievably race neutral reasons for ending these programs. So nothing to see here folks. Top lines on this argument, especially coming right after the announcement in Calais. This was rich. This is rich.

When's it was a lot? It was. In this case, the TPS cases is possible. The solicitor general may have overstep just by advancing extremely broad theories about the bar of judicial review, which might provoke the court to preserve a narrow, albeit limited, and deferential category of claims that can be reviewed.

The plaintiffs are arguing procedural claims and constitutional claims can be add to that.

There were a few questions for the lawyer challenging the replication of TPS for Haitian nationals. At the same time, I wasn't exactly sure who the five would come from. You know, at times the chief in Barrett sounded skeptical, but they've done this before. Only to go full throttle on what the federal government is selling. Yeah, so I actually felt modestly optimistic about the chief and Barrett.

I mean, they were both mixed, but out of the gate. The chief pounced on the government for like overeating or seeking to extend without copying to it. Trump versus Hawaii. And I did think Barrett was reasonably sympathetic, though, uneven. I heard nothing in her questions that like alluded to this obviously explicitly, but I did wonder whether the fact that she has two adopted kids from Haiti might make her somewhat less likely to just dismiss the president's.

Violewords about Haitians, but you know, hard to know. The challenge is not the same precedent to whom she introduced her kids when she was nominated to the Supreme Court. Very same, yeah. Very same.

“And I mean, I mean, I think she probably hung out with the state dinner last week.”

I don't know. But probably did. Yeah. So yeah, she hasn't shown that much interest in distancing herself from him, but hope springs eternal. There's also the fact that the challengers were like, I thought, very cautious and kind of measured in their asks.

They were very insistent that executive branch gets tons of difference here. No one is asking the courts to decide whether to keep or terminate TBS just that there is some minimal process beyond the non-existent process that was followed here that the law requires. But then there is this weird thing where at moments the fact that the asks were like pretty small were for Barrett and Kavanaugh. Maybe reasons to rule against the challengers. Like, if you're not asking for much, then like, why bother, which I found maybe just at my head for a window to do shit?

Why should we bother if they get to the same outcome anyway? No, completely. Anyway, I did sort of feel like heads. I wouldn't tell you, lose. But again, I felt like hopeful that there may be a narrow, but obviously meaningful loss for the administration here.

Anyway, that's my top line.

Yeah, they were basically like, go bigger, go home.

Right.

“Yeah, I mean, we know you're going to work, we're going to send you home if you go big. So, like, again, that's that's how we win.”

Don't big and go home. Right. Yeah. You know, so obviously one of the arguments that the challengers are making here is a procedural argument that, you know, yes, the executive branch can do this. They just have to follow these specific procedures.

This is a species of the kind of argument they made in the DACA decision cases that were heard back in Trump 1.0. I think it was around 2020 when this podcast was getting going for the first time. Those arguments were obviously availing in that context back in 2020. I just wonder if they're going to be as deferential to this administration as they have been more recently, or whether we're going to go back to that one point out where they're just like, listen, just do government right. Like, you got, you got shitty instincts, but just do it right.

And who knows. Another ongoing theme that was sort of surfacing there was, you know, what the fuck is Congress for? What the fuck are courts for?

“Do you need Congress or courts when you are the unitary executive?”

I mean, they genuinely seem to be grappling with the fact of their own obsolescence, which was interesting. Another observation was that the race talk in this case was so off-putting, and especially so given that the argument occurred right after the court declared racism dead and buried in the announcement of the KLA opinion. So I very much appreciated both justices, so to my ear and Jackson staying on the administration's neck about its arguably racist statements regarding immigrants and the countries from which they arrive to the United States.

I mean, just a lot to go on here, and I know we should talk about this and place and tape, I think. Yeah, so we wanted to share the exchanges between those two justices and the lawyer for the federal government, just because they were other world leave. So let's play those clips. We have a president saying, at one point, that Haiti is a, quote, filthy dirty and disgusting, as whole country. I'm quoting him, and where he complained that the United States takes people from such countries, instead of people from Norway, Sweden, or Denmark, where he declared illegal immigrants, which he associated with TPS, as poisoning the blood of America.

None of them, not a single one of them mentions race or relates to race.

Anyway, all those statements in context refer to problems like crime, poverty, welfare, depends on the structure. What about poisoning the blood of Americans? If you look at those statements at context again, they're clearly talking about problems, but about bad means bad genes, quote and quote. Again, also not not, they presented them, wrenched from context. You can look at each one of those statements, they're talking about problems of crime, poverty, welfare, dependency again.

Problems that have been emphasized again and again, by not just President Trump, not just the Secretary, but many others who favor a tough immigration policy. And if the position of the United States is that we have to have an actual racial epithet that we don't, we aren't allowed to look at all the context. Wow, that was quite a super cut. What a mashup. I mean, this is about welfare and poverty.

Yeah. Just say welfare because you do think you're saying things that indicate, you don't have racist views, the President doesn't have racist views. If you're saying people from those countries are more likely to commit crime and people are, like, I don't understand. Yeah.

“I mean, I think he had to take that position and it was horrifying and almost laughable to observations about that one.”

We'll talk just briefly about a case involving the alien towards statute and the torture victim protection act. But Jackson and so to my or, and they're kind of continued insistence on saying what the case is about, like, even when their colleagues want to retreat to, like, abstract legalism. Like, their colleagues want to talk a little bit about the APA and, you know, kind of difference to the President and the executive. And they're like, here are the words he said with his mouth or on truth social, like, let's listen to them.

And in the same way, in the case involving this alien towards statute, there's all this sort of abstraction about third party and secondary liability.

And so to my or one point is like, we're talking about allegations that a government with the help of this US corporation designed a torture scheme and, like, tortured people. And you can just hear in the room they hate when these, when such my or and Jackson, like remind them what these cases are about and, like, I love it so much. It's so important. I hate it when women of color bring up all of the quasi-racist statements I mean. Yeah, completely like, I wasn't in the room, but I am sure that they were all, like, why do you keep saying this stuff?

“It's like, that's what the case is literally about, like, so rude.”

Yeah, so rude. Exactly. Yeah. Anyway, and, you know, the federal government is to save them. The discrimination on the basis of racism.

It's a stock talking stock. The discrimination on the wrong way.

In these hallowed halls, basically.

Anyway, and yeah, I was just sort of especially going, the federal government tried to defend all of this on the same day. That Justice Alito announced that racism is over in Kale from the bench. And I don't think we've said this, but Kagan descended from the bench and it was apparently pretty epic.

“Well, can we go back and take a few beats on the shamelessness or the lack of vergonia of one Samuel Alito?”

There was this very extended disposition with the lawyer who is representing the Haitian Nationals in which Justice Alito amused about whether he would view certain immigration policies as directed against white or non-white individuals. And he asked about, in addition to Syrians and Turks, whether Greeks and Italians might be considered white or non-white. And the lawyer basically said, sir, I don't know who needs to hear those, but there was a time when Italians were not considered white. And then Justice Alito responded with this.

The really large, really broad definition of who's white and who's not white. That's, I said, I don't like delighting the people of the world into these groups. That is the man who says it's racist racial discrimination to comply with the voting rights act and not racist to discriminate against black voters. If you're discriminating against Democrats saying he doesn't like dividing the people of the world into racial groups. How much easier to divide them by partisan affiliation, Leah, raise neutral and much better that way.

Whatever, just insane. The other one that I loved, John Sauer had some real bangers in this argument, I have to say, but this is the one I really loved. He said, with a straight face, this is the Syrians general of the United States, John Sauer said with a straight face to Justice Brett Kavanaugh, that the president of the United States revoked TPS for Haitian nationals in order to reverse the brain drain from Haiti. So Sauer said, quote, "There's this kind of talent drain out of Haiti."

That's the Trump administration. Folks, like the Trump administration is literally revoking TPS a policy that was created to help the people in this earthquake ravaged society come to the United States.

They are revoking it in order to help Haiti retain its natural pool of native talent.

That's foreign policy. That is presidential folks. The sort of bad faith continues a pace.

“So in an argument of many notable exchanges,”

and I did think the kind of Justice Lito asking about Italians. And the attorney from the podium, I thought, did a very nice job, basically saying, yeah, 120 years ago, so other Italians weren't considered white. And you would think that would give Sam a little pause. And yet instead, he was just like, I'm annoyed by this whole thing.

That's the second time he's been called on the history of Italians in America and their relationship. Yeah, yeah, yeah. And yet it's not really penetrating, is it? But you know what, guys? It's time to talk about Clarence Thomas.

Okay, so we're no further. He would go further.

So, you know, he always wants to go further than his colleagues and with the lawyer representing the Haitian nationals.

These planets are unsurprisingly challenging the revocation on the ground that was motivated by racial animus. Right, see all the statements that we were just adverting to and also like a desire to discriminate on the basis of race.

“And Clarence Thomas seemed to take issue with the idea that the federal government might be prohibited from discriminating on the basis of race, right?”

Like just to say that again, not sure. Thomas isn't so sure that there's anything unconstitutional about government discriminating on the basis of race if it's the feds. Just sit with that. During the seriatum portion of the argument, just as Thomas repeatedly asks the lawyer, how the lawyers equal protection race discrimination claim worked or rather whether it made any sense.

And the just of Thomas's question was essentially that the equal protection clause appears only in the 14th amendment, which applies only against states. It doesn't apply against the federal government. There isn't an explicit guarantee of equal protection in any part of the constitution that is applicable to the federal government. However, as I note in the U.S. Constitution, a comprehensive and annotated guide for the modern reader.

On the very same day, the Supreme Court announced its decision in Brown versus Board of Education. It also announced a decision in bowling versus sharp a companion case. And it struck down segregated schools in Washington, D.C., a federal territory. And it did so on the view that the fifth amendment, which applies to the federal government, contains an implicit guarantee of equal protection. And this is all discussed here.

Weird that Justice Thomas doesn't know this or if he does know it, whether it is an invitation to other people to challenge or question. That is of bowling versus sharp and this implicit guarantee of equal protection in the fifth amendment. You know what's so pesky, precedent, precedent is? And books in the constitution. As we keep saying, by the book.

The quality of this book, the U.S. Constitution, comprehensive and annotated guide for the modern reader.

Send one to one first street, I know for example.

Send like six. Exactly, not like, but exactly six is turned out. So at one point during the oral argument in the TPS cases, Justice Kagan's voice. Like, kind of cracked, she sort of started to cough. And she said, I'm sorry, I'm losing my voice.

And it was like a couple. It was sort of an extended period where she's trying to talk and then just kind of keep sort of losing it. So that might have been the result of her extended flaying of the collay majority by reading portions or kind of summarizing her collay descent from the bench. I mean, I don't actually know if she read portions of or summarized her descent from the bench since for reasons. And by that, I mean, like, just reasons they haven't told us.

They don't broadcast the audio of the opinion announcements despite now, you know, real time broadcasting the arguments themselves. It's in saying, just a thing they do because they can, which is not sure that audio with us anyway. We know she read her descent, but I am really eager to actually get that recording. And it's just insane that they make us wait.

“So there was another change on one of the highlights. So one important precedent for the challengers is New York versus commerce, the case involving the challenge to the edition of a citizenship question on the 2020 census.”

The lawyer for the challengers. By the way, the Trump administration said they needed the information to enforce the voting rights act. Right. Team which I just argued in favor of dismantling a nullifying just reminders, reminders all around. Oh, my god.

Receipts. Yeah. Yeah. Sort of it, infinite regress. So anyway, here is that exchange with the attorney for the challengers. I wouldn't change a word of commerce. Your honor. I wouldn't either.

Yes. Okay. So I just, I don't know what you guys made of this. I Lawn is a wonderful lawyer. We've had him on the pod before. And I thought he did a great job in this argument.

I will just say that I personally would change lots of words in New York versus commerce in that it's a kind of incoherent opinion that both says. It's not arbitrary and capricious for the government to add this question.

The addition has to fall sort of separate from traditional arbitrary and capricious kind of analysis. Anyway, it's a puzzling opinion. I've spent a lot of time with, but I understand when you are doing in front of them.

“You have to say that there are paintings are perfect and you wouldn't change.”

Perfect.

You're beautiful. You're doing amazing Swedish.

I mean, look, but this goes back to what Melissa was saying at the outset, which is we really will find out. Whether these were just entire one-offs, both the census case, which the first Trump administration lost and the DHS, the doc or decision case, which the first Trump administration also lost, either those cases like stand for a principle about how government has to do things or they don't.

And I think we're going to find out here. One final note. I think this is bubbling up in the lower federal courts for sure. But we definitely saw a glimmer of it here at the court in this argument. And that is judges here, Justice Sotomayor, using the unitary executive theory against the administration, which, as we know,

is obsessed with the unitary executive theory when it suits them. So let's hear this tape. I'm not quite sure, not so long ago, you came in and said that every executive officer has to be insurable to the president. So the president's statements have to be attributable to its executive officers.

“So the secretary, I don't see how you can take both positions.”

Either an executive follows the president's orders or it does it. That was great. So we will briefly touch on the rest. Well, not that whole thing was great, just so to my own was great, not the argument. Although as I said, I am optimistic, not necessarily. But once again, so to my own great question.

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We will briefly touch on the rest of the skota's arguments from last week at the end of the show. But we wanted first to touch on some more legal developments because there have been a lot of them. First, I know you guys did not have this on your Bingo card for 2026, but it's time to talk about ball rooms and their implications for national security.

I know you weren't expecting it, but ball rooms and national security are actually co-extensive. And that is because on Saturday, April 26, it was a terrifying incident in which a gunman appeared at the White House correspondence association dinner at the Washington Hilton and shots were fired.

Thankfully, it seems that no one, other than the gunman, was injured. This was a dinner where, for an explicable reasons, given their disdain for the first amendment, the president and members of his administration were invited. And so the fact of this gun violence episode

obviously had real implications for the safety of those officials. Right, but the last thing Melissa said that they were invited

for sort of what comes next because aftermath of the shooting, the administration began making the truly absurd claim that the shooting supplied evidence for why the president needed this 90,000 square football room whose construction is underway at the White House because national security demanded it.

Right, so this is what they immediately jump to. Here is Carolyn Levitt making this claim. The White House ballroom project is not just a fun project for President Trump, like you will read in the media.

It is actually critical for our national security.

Here is Lindsey Graham, echoing it. If you don't think $400 million of taxpayer money is a good investment to create a secure facility at the White House where the president United States, the vice president, the cabinet and people from the public can come and, you know,

have a meal and gather without what happened Saturday then I discovered this is the number one job of the federal government is national security. The number one job of national security,

“I think would be to protect the commander and chief”

and to have infrastructure under the ballroom that is very national security centric. And apparently the president thought those comments just slapped because the Department of Justice filed a motion to this effect. You should read the entire nine pages.

We will just provide you some excerpts. Quote. The national trust for historic preservation is a beautiful name but even their name is fake. That's all caps.

Because when they add the words in the United States to the national trust, it makes it sound like a government agency. Which it is not. They are very bad for our country. All right, read Melissa's book.

The national trust for historic preservation isn't even in the constitution. So like what even are they? Okay, wait, let me read another quote. This did not deter them, the national trust, because they suffer from capital T Trump,

capital D, derangement, capital S syndrome, commonly referred to as TDS, as noted by Democrat Senator John Fetterman of Pennsylvania. And as are represented, the challengers that is by the lawyer for Barack Hussein Obama, Gregory Craig,

who I'll note is now at the law firm, fully enlarged. One more quote. In the long and storied history of the White House, dating back to 1791,

Congress has never dictated or tampered

with the zoning permitting or architectural aspects of any capital P project, especially one being given all caps, free of charge as a gift to the country. This insane brief was signed by the acting attorney general, Todd Blanche.

It just feels like this performative objection. It's like, I will literally do anything for you. Performative is the exact word. This is your audition for me. I have no shame.

I will literally do anything for you.

“And honestly, having read that, I believe it.”

Sorry, wait, there's more. Wait, do you want it? I'm ready. This is my time to show. This is my audition.

All right. If any other president had the ability foresight or talents necessary to build this ballroom, which will be one of the greatest safest and most secure structures.

I mean, it's kind of anywhere in the world.

There would never have been a lawsuit.

But because it is Donald J. Trump, a highly successful real estate developer, who has abilities that others don't, especially those who assume the office of the president. This frivolous and meritless lawsuit was filed.

Again, it's called all caps. Trump, derangement, syndrome. On top of everything else, this project is a gift to our country from president Trump and other donors. It is free of charge to the American taxpayer.

Who could ever object to that? What do you have to say, bitches? Who could object to that? Yeah. So it reads like a truth social post.

It was actually posted verbatim by Trump on truth social as opposed, which I mean,

“why bother with the interim step of the filing at all?”

I don't even know. I mean, the real derangements syndrome. Like, wow. Reflecting on this, one wonders, would Louis XVI and Marie Antoinette have died

if they had had a ballroom. So I would like to ask you this question more and more. Let them eat disco balls, said Marie Antoinette. Exactly. More fucking around and finding out dispatches.

We wanted to talk about where the other federal courts holding the unitary executive theory against the administration and what we're calling, fuck around and find out unitary executive edition. Okay.

So let's take through a few pretty kind of interesting developments here. So one development came from the district judge in Florida, Judge Kathleen Williams, who is overseeing Donald Trump's case against the IRS. This case seeks 10 billion with a B dollars from the IRS and treasury related to the disclosure of Trump's tax forms.

And the judge questioned if she had jurisdiction over the case or whether it would have to be dismissed. And if you're a constitutional law professor, you kind of loved this opinion because it was like, wow, jurisdiction 101.

The judge wrote, quote, a key characteristic of the case or controversial requirement

who face each other in an adversary proceeding.

“Typically, adverseness is found in a situation where one party”

is asserting its right and the other party is resisting. But she continued in the instant case, although President Trump appears that he is bringing this lawsuit in his personal capacity, he is the sitting president. And his named adversaries are entities

whose decisions are subject to his direction. Oh snap! And the court done cite some of the executive orders invoking the unitary executive theory.

If it's so unitary, it can't be at first, bitches.

I don't make the rules. Like, it was great. Short, like, very punchy. Yeah, it was great. And sort of another development kind of related

came from a district judge in New York, Judge Ferman, who was overseeing Mourine Komi's case, challenging her removal from the U.S. attorney's office. She's a longtime, very respected federal prosecutor, her father is Jim Komi.

Judge Ferman found in Mourine Komi's case that he did have jurisdiction. This is a case challenging her firing, and he says that it did not have to be filed as the federal government claimed before the Merit Systems Protection Board,

the agency overseeing the civil service that Trump has hobbled and asserted control over. The judge found that federal court not the MSPB had jurisdiction over the case. Because, get this, the president invoked his article

to power as the basis for firing her. Quote. Komi's case does not fall within the purview of the civil service reform X scheme, because she was fired pursuant to article two of the Constitution,

not pursuant to the CSRA itself. Defendants sole reliance on the Constitution, rather than the removal provisions of the CSRA, places Komi's case outside the universe of cases that Congress intended the MSPB to resolve.

Sometimes you got to read it. Too legit. To Quote, you do read that for the article. It's read the Constitution for the article. I'm at that.

But you live by the unitary executive. You die by the unitary executive. I'm not even sure if I am allowed to say die in the same sentence as executive, or if I will be indicted.

“You have to know what you're writing in C-shows.”

No C-shows. Okay, great thanks. Good to know. Great tip. Also, the opinion by Judge Furman has a nice site

to case partisanship creep article in there.

Always read the footnotes in addition to the articles.

So I don't want to characterize these two things. Okay. As promised, let's briefly do the other argument recaps.

And let's start with chatery versus United States, which is the Fourth Amendment Geofence warrants case that we briefly previewed last week. So as we said to the kind of Fourth Amendment stands, this is a really important for the memo case,

involving the Constitutionality of this novel type of warrant called Geofence warrants. Geofence warrants let law enforcement get the identities of cell phone users in particular areas or locations at particular times. They basically draw a kind of virtual fence around an area.

And then they seek a warrant to require a tech company to search its data to ID users within the Geofence at the time of the crime. But then, as is the case here, the government sometimes conducts additional information gathering about the people it identifies.

So here, after identifying some individuals, the government then requested location data over a longer period of time. So in this case, after there was a robbery of a federal credit union during which a robber apparently was talking on a cell phone, law enforcement asked Google for cell phone records

of everyone in the vicinity within one hour of the robbery. And Google has the data because millions of people have a feature called location history turned on in Google Maps, whether or not they realize it. So after Google returned an initial list of people within 150 meters

for 30 minutes before and 30 minutes after the robbery, law enforcement sought and didn't get an additional warrant for this step. Information about the movements of certain devices for a longer to our period and Google complied with that request. Then, again, without seeking an additional warrant,

law enforcement asked for subscriber information for three devices. One of those devices belonged to the petitioner. Based on the evidence derived from the Geofence warrant, the petitioner was charged with armed robbery and firearms possession.

“I think it might be helpful and the court seems inclined to go in this direction”

to think about this case as involving a few different steps or actions. One is the Geofence that is seeking information just about who is in a given space at a given time.

The second is the subsequent information collection,

seeking the location movements for some number of people for a period of two hours and the third is the request for a subscriber information. Yeah, and it seemed like the court was not inclined to say there was a reasonable expectation of privacy at step one, sort of of kind of the Geofence warrant. So the company has asked send us all the people in this area at the time

and maybe you as one of the people who is in the area don't actually have a constitutionally cognizable interest in not having that information that you were there around this time disclosed. So maybe the court is going to go or sort of kind of focus its attention on the second and third step of the process that we just walked through.

would not necessarily be an insignificant change in fourth amendment.

“Dr. and at least once you cross a certain threshold of probable cause reasonable suspicion”

there's kind of no variation within there. Maybe not an unborn to change but still a change. There was real discomfort though with the government's argument that there is consent or voluntary disclosure of the location information here. The idea was that the people didn't turn off the location tracking information

and therefore they had consented to this kind of treatment. As the justices noted a lot of people find that useful to use the location tracking like find your phone whatever. The justices were also reluctant it seemed to rely on the terms of service that is where Google tells users that it complies with government requests for information

and the point was that even if they said that it mattered that could potentially allow the government to get access to email and whatnot. And as we mentioned it seemed like the justices were interested in the idea that at different steps of the process the inquiry here might change for purposes of the fourth amendment. And just as Jackson was really keyed in on this early on in the argument.

Something that came up a bunch of times in the argument was this analogy that the petitioner had offered that these warrants are like directions to go through everyone's storage locker. So you have like a big storage site and like tons of storage lockers could the police just ask the owner to search everybody's storage locker for like a gun.

And just as kicking like in the steps in the GFN's process to the idea that first

the government looks at a bunch of glass front lockers to see if they have bags. So I imagine not a no-pake but like a see-through door to the locker. And then the government feels the outside of the bags and then they open the bag and like those are distinct steps in the process. Yeah, so the federal government again here as in the TPS case really did itself know

favors in the argument. They poo-pooed several justices concerns that GFN's warrants might allow the government to surveil people at sensitive locations such as churches or homes which are supposed to be entitled to special protection under the fourth amendment. And this seemed to potentially peel off both the Chief Justice and Justice Barrett. It was interesting. So you had the kind of valence of the examples given.

So right, you had churches, the at-home's abortion clinics came up a couple of times as well. Yeah. So different justices might have been differently moved by imagining the invasion of privacy and might occur at different kinds of locations. Kind of and I'll seem to be kind on the other side with his like but crime logic,

which is ever present and you can sort of hear that in this clip. The local government amicus brief in the 31 states amicus brief, which has a huge spectrum of attorneys general on that amicus brief,

“which I think warrants note talked about the practical consequences.”

It's not being able to solve murders.

A lot of huge percentage of murders are never solved, for example, and violent crimes.

You do also seem to be on one. Justice Lito seemed to be very triggered. The court might rule for a criminal defendant. And so he was putting in work to find a way to avoid that unpalatable outcome and take a listen. Well, we can affirm on any ground that would support the judgment and was raised below.

And the good faith exception qualifies on all those points. So fact that the court did not grant surgery on the good faith exception does not preclude any of us from relying on that. I'm not sure I agree. I mean, the court specifically declined surgery on that question. So we didn't brief it.

And we raised in our cert petition that we'd like the chance to argue that the questions are intertwined. And in view of a holding on the fourth amendment issue, we'd like to, you know, litigate the good faith issue. The court didn't grant surgery. We didn't brief it.

The government did have a section of the response and brief addressing the good faith exception. But adhering to the court's decision not to grant surgery. We didn't respond in the reply brief except to ask for a remand. So that was your choice. We, the court did not grant surgery.

We were reluctant to brief a question on which the court specifically declined. We're in a serious advocate. You understand that we can affirm on an issue that was raised below and wouldn't support the judgment. This is not how Supreme Court practice works. Like a party can just decide.

We're going to brief and argue this separate question. You didn't actually grant cert on. It's just not how it worked. Like they would go nuts if someone did that. That's they dismiss cases for that.

Completely. I couldn't believe just how craving it was was like, I want to find a way to get to the outcome that I want. And so I'm going to say something.

“I would never in other circumstances say, which is you should have ignored our decision to take.”

But not take like certain parts of this case and just like briefed everything anyway. Yeah. So Adam Nukowski definitely won that exchange. I thought. Yeah.

So the court heard several other arguments that were not going to fully recap in the interest of time. This is just a crazy week. We're also not able to cover Pete had keg Seth, keg's breath, whatever. His testimony. I did a short YouTube reaction video on the Komi indictment.

Like there's just so much going on this week. But at the court, the court heard Mont Santo versus Dernal, which is about preemption of state tort suits for failure to warm claims.

Proclaims are the same as my favorite federal statute. It's a nice one. It's a nice one. It's a nice one. It's great.

Yes.

“The oral argument in the case was hard to read.”

It could end up being an anti-administrative screed for the plaintiffs. Or it could be a ruling for corporate defendants whose products allegedly cause cancer. Really difficult for this court to choose between those two. I'm sure hard one to know where to root. Cross-pressure, cross-pressure.

As Kate alluded to, there was also Cisco versus Dough. There the court appears inclined to limit the scope of liability under the torture victim protection act and alien tort statute. Because while out torture victims, the opportunity to alleged US companies aided and abetted torture. Why not?

The court also heard the first patent case.

It's heard in a few years.

“Hickma Pharmaceuticals versus Amaran Pharma, where just based on my read of the oral argument,”

it sounded like the court was going to reject one theory of liability for induced infringement against certain generic drug manufacturers. This products are approved for both patented and unpatented uses. All right. So finally, let's turn to opinions. We've obviously covered Kelle, although we're going to return to it again and again.

But we also got the court's opinion in First Choice Women's Resource Center versus Davenport. The case about whether the plaintiff, a crisis pregnancy center, had standing to challenge and administrative subpoena issued to them by the state of New Jersey. Where the state sought information that would help the state determine whether the organization was in compliance with state consumer protection laws. And you know, included in that information that would have been produced pursuant to the subpoena was identifying information about donors.

The court held that the organization had standing to challenge the administrative subpoena in federal court. The state had argued that there was no risk of injury because the subpoena didn't generate any legal penalties unless and until the state convinced a state court to enforce them.

The court thankfully did not second guess the state's reading of state law that those subpoenas are not self executing.

The court instead said the risk or prospect of enforcement was sufficient to cause injury. The opinion was written by Justice Gorsuch and it was unanimous. This result was not surprising given how the oral argument went. So as we talked about with New Jersey attorney general in our episode recapping the argument, the ruling does really open up the ability to challenge thousands and thousands of administrative subpoenas that are routinely issued by state and federal governments all the time, which has a potential to overwhelm federal courts and jam up legal enforcement.

But as we suggested, this outcome might reflect a new reality of the intense politicization, weaponization of law enforcement in the Trump administration, where the justices may have been forced to recognize the extent to which the government uses its investigative powers, including administrative subpoenas for abusive ends, and therefore may have wanted to open up a path to challenging them earlier on in federal court. I mean this last week we got the indictment of Jim Komi. We learned that maybe the investigation into federal reserve chair, Jerome Powell, had ended although Carolyn Levitt suggested maybe it hadn't.

And there were you know has been reporting about how the Trump administration has issued an administrative subpoenas to people who criticize the administration or question them.

“So it's been a lot and I think the pace is probably going to continue.”

So let's leave you.

Well we'll go to favorite things but first we've got two clips without context.

We're going to play for you. Here is the first one from Chattree, the Geofence Fourth Amendment case. I'm sorry. I want to go back to Justice Barrett. If you're not through Sam, I thought you were through. Go ahead. To go back to Justice Barrett's question. If you're not through Sam, this was, you know, please please please just comment through. But that was probably just wishful thinking.

And here's the second clip without context this one from Cisco. Justice Barrett, if I could just pause for a moment, I've been notified that there will be a flyover of four planes at 11, 22. And I just want to announce that so people aren't alarmed or told the noise might be big. I don't know why they didn't check with me, but just despair. This got my attention because we've joked about them using the Shader Docket to intercept missiles that would destroy an asteroid headed for Earth.

And it sounded like the Chief Justice was maybe potentially opening that door or leaving it a jar. Okay, so favorite things. All right, let's do it. You start. Okay, so Melissa's book, the US Constitution, Comprehensive, and annotated guide for the modern reader. Also, Ariana Grande announced a new album. I'm so excited and it's a lie. And I'm going to see the Noah Com concert. I got tickets. So those are good things. Also, two voting rights act pieces on the opinion I wanted to flag here.

Sherlin, I falls post on her sub-stacked. Scotist drops the other shoe on the voting rights act was phenomenal. As was recossens, the slaying of the voting rights act by the Coward Samuel Alito at Slate.

And then a YouTube over at Jamal Buiz channel takes.

“This one was, I think, inspired by the wooden rights act decision.”

And this one isn't title. The Supreme Court is corrupt. This is what we can do about it. And it really walks through the options of Supreme Court reform. Oh, that's great. Yeah. I want a second, Melissa's book. And also the merch. Again, I'm not wearing a t-shirt, but I got a great mug. At some point, I'll have the actual physical book, and then I will flash it for you.

I'm finally reading the loneliness of Sonia and Sonia, which many many people have read and loving it. Most people did, but I think I've heard somewhat mixed reviews, but so far, really love it. And I recently read Ben Learner's new novel Transcription, which I'm thinking about a lot.

I felt differently about it at different points as I was reading it, but highly recommended, although I didn't always like it.

And I'm really glad I read it. Yeah, that's all I got. All right. It was kind of a week. It's a big week, and I just want to think all of my mom friends who we came to, we had a big kid event this last weekend, and we all came together. And I just want to shout out those ladies. They are absolute bosses, and we did that. So thank you, ladies. I am reading "Yesteryear" by Caro Clare Burke, and it is so fucking satisfying to read this out. The premise is about like one of these "Tradwife" influencers who has like, you know, like a ball and read a farm, I guess.

And then suddenly find some selves transported back in time to the actual frontier, and I just kind of love it. Like, you want to be an anti-faxer? Okay, have some measles. Try that, see how it works. I'm really kind of enjoying it. It's not fucking around and finding out. I love it. So I'm really enjoying that book. I also really love many of the thought pieces that came out the last two days of round the decision in Kelly.

You mentioned Charlin Eifel's Fantastic Substack. I will also say, last week, the studio museum honored Charlin Eifel, and she just gave one of the most amazing and inspiring speeches.

Basically telling us, like, this is not going to change in our lifetime, but that doesn't mean we don't do the work. Like, we do the work so that our children and grandchildren can sit in the shade of trees they did not plant. And, you know, I don't know who needs to hear that right now, but it's not the time to put your plow down. You gotta keep going. And I appreciate it. I also loved Adam Cerber's piece. Voters can be disenfranchised, because, yeah, we're going to see that, and I'm glad he's speaking truth to power.

I also want to say just in terms of my favorite things, I'm trying to think about what I can do in this moment as a black person, a black woman watching these gains that my ancestors, people I love fought for watching them just be rolled back. One of the things that seemed clear to me is that people are not going down to that fight. There's redistricting that is happening in Louisiana and Florida, and the NAACP legal defense fund and our friend of the pod, Janae Nelson, are suing the fuck out of them.

“Yeah. And I love that. I love that they're taking the fight to them, and they need our help. So, you know, someone asked me, like, what can we do?”

We can contribute to that. They need resources to be able to launch that litigation that is something tangible you can do right now.

So, if you can support that work, that's amazing. That's, you know, don't despair, help the people who are fighting prepare for the next leg of this fight.

Amen. One other just note about Kalei, we're going to sandwich this. If you control left that decision for Purcell, you will not find a single mention, even though of course. Right. Who'd add new phone? Who'd this? Because, in case says federal courts not supposed to change the rules to close to an election, they did so, causing states to literally suspend and cancel elections. Quite close to election. There's going to be a Neil Gorsuch decision a couple years from now. It's like, everyone knows Purcell has been abandoned for lack of use.

Well, only when, again, certain people are invoking extra wank. All right. On that note, spring is all about fresh darts, new t-shirts, and terrifying new reasons to call your representatives. The crooked stores call Congress line has been a best seller since it launched years ago, and now it's available in new spring colors like butter, yellow, and chocolate brown. Plus, all the pieces got a quality upgrade, so your favorites can stay in rotation even longer. So, can I just say quickly, I was in Japan for my kids bring break a couple weeks ago, and I have the in navy blue, the call Congress hat with like the number.

“On it, and it's a great hat, and my kids are like, what if people in Japan start calling Congress?”

And I was like, that's fine. Why not call Congress? And actually, the number is just the number of the congressional switchboard. So, it will direct your call to whatever representative you want to talk to, kajol, or yell at. So, anyway, it's actually super. Right, that you can call about that. You can call about new voting legislation and anything else your heart desires. Anyway, honestly, it's like hard to do the first time, and actually a lot easier, and then kind of fun to do subsequently.

Oh, it's super fast. I love it. And just be like, so what's your plan about Samolido? Like, what are you going to do?

I've never come with that with that queer life.

I think I did whatever I have Samolido to catch out. Yeah, no, I'll usually call out there's something specific, but never just like a general Samolido range. Cool, that's interesting. Okay, well anyway, whatever motivates you to actually take the step calling your representatives has never been more important. So, you can make spreading the word easier if you throw on the hat, the t-shirt, the crew neck, like all of that.

Again, I guess in new colors is available at crooked.com/store. So, go there, shop now, and you yourself make three calls this weekend. All right, heads up New York and the greater tri-state area, because you know what? Your favorite lovely ladies, Dissing the Court. They're coming your way. That's right. You can catch strictly live at the historic Grammarcy Theatre on June 20th as part of the bad decisions tour.

And it's only me, which means there's going to be a lot of bad decisions that we can talk about. Take it's our on sale right now. You can grab them at crooked.com/events.

“I will just say they are going fast. So, if you want to hang out with us, you got to do this.”

Like, get on it. It's going to be so hype. Like, our live show in New York every year is always really dope. Yes. It is. It's going to be really fun. I'm excited to tell you.

I mean, you know, we're not going to be in a stage set piece like Lily Allen, but it is going to be pretty bad us. We don't know that for sure. We haven't even had the design. We haven't had the design yet. We haven't had the design yet.

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