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0:37

You know, What are

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Take back the. Next.

1:16

Welcome. Back to Strict scrutiny your podcast

1:18

about the Supreme Court and the legal culture

1:20

that surrounds it. Were. Your hosts

1:22

I'm Melissa Marie I'm real it men and

1:24

I'm Kate. Sure. We. Have our

1:26

annual Favorite Things episode all cued up

1:29

for used to don't worry but. In.

1:31

The brief period since recorded

1:33

that episode. Some. Big things

1:35

have happened at one First Street and

1:38

so we wanted to talk about all

1:40

about breaking news. Before we turn to

1:42

our favorite things. First, we're going to

1:44

do a deep dive into that bombshell

1:47

New York Times reporting that was brought

1:49

to us by Jodi Kantor and Adam

1:51

Liptak about the Supreme Court and the

1:54

lead up to the courts historic decision

1:56

and Jobs vs. Jackson Women's Health Organization

1:58

and joining us today. We'll be Jodi

2:00

Kantor to top all about how she and

2:03

Adam Scott to the bottom or at least

2:05

close to the bottom of that dogs story.

2:07

And then we're going to turn to the

2:09

Miss A Press don't grant that the court

2:11

to that's last week and will talk a

2:14

little bit about what that means going forward

2:16

and what it could mean for medication, abortion

2:18

access throughout the country. And then finally we

2:20

will turn to our favorite things. all of

2:22

things that you can drop in our holiday

2:25

stockings and perhaps in your holiday sucking as

2:27

well. So basically this is our at least

2:29

favorite. Things and most Favorite Things episode. Even

2:31

the first segment is a combination because started

2:33

in journalism that exposes the inner workings of

2:36

the Supreme Court actually is one of our

2:38

favorite that is. So the first piece of

2:40

knew that we wanted to cover is the

2:42

New York Times latest bombshell reporting on the

2:44

behind the scenes maneuvers at the court regarding

2:47

dogs and abortion rights and. With us today

2:49

to discuss that. Story which is coauthored with

2:51

Adam Liptak is Jodi Kantor. Listeners.

2:53

Judy's name should already be familiar to

2:56

you. Not only did she, along with

2:58

her New York Times colleague met in

3:00

two weeks break the Harvey Weinstein Me

3:03

To story just a year ago in

3:05

November. Twenty Twenty to see along with

3:07

Joe Backer broke the story about influence

3:10

peddling at One First Street and the

3:12

Hobby Lobby Week. So let's just say

3:14

that Jody is really really really good

3:17

at digging into Sas that people would

3:19

prefer to keep secret. So welcome to

3:21

the show! Truth seeker Jodi. Kantor thank

3:24

you so much So honestly where to

3:26

start with the reporting? There are a

3:28

lot of things he could cover from

3:30

Ed. So let's start with the did

3:32

before they took the case or at

3:35

least before they took the case publicly

3:37

and good catty out Leah. Savvy, I.

3:41

Showed he can you talk us through

3:43

what you learned about the timing of

3:45

the court's decision to hear dogs and

3:47

it's announcement of that decision because seems

3:49

like they're the low mismatch here. So

3:51

one is the themes that Adam and

3:53

I kept finding and are reporting is

3:56

that Justice Ginsburg death really hung over

3:58

the whole process and you can. You

4:00

just from looking at the public

4:02

doc at that. There is a

4:04

very close relationship and timing is

4:06

between Justice Ginsburg dying it's and

4:08

dogs moving into position for consideration

4:10

by the justices. And what happens

4:12

is that first it's rescheduled as

4:15

you know. but these terms are

4:17

a little are keen to the

4:19

public. That essentially means the discussion

4:21

is just pushed. It doesn't really

4:23

happen. the discussion is delayed by

4:25

the court. We found out the

4:27

behind the scenes that was Justice

4:29

Alito. Who this doing some

4:31

of that rescheduling and the fall

4:33

of Twenty Twenty and of course,

4:36

Justice Bear It is just arriving

4:38

at the court at that point.

4:40

so some insiders had the impression

4:42

that he was sort of giving

4:44

for time to get settled. But

4:47

then in January of Twenty Twenty

4:49

One, the real discussion begins. And

4:51

you're right, the claiming discussion is

4:53

sort of the most interesting thing

4:55

about at first of all, the

4:57

discussion takes place. It starts on.

5:00

January. Eighth, Twenty Twenty

5:02

One. Or thought. A lot about

5:04

that. As I was working on this story, I

5:06

just remember thinking. Wow. Two

5:08

days Amateur January sixth

5:10

grade. So. You know,

5:13

it is very scary time in

5:15

Washington there's been this attack on

5:17

democracy, but as you know that

5:19

the justices follow their own agenda,

5:21

others a kind of compartmentalisation from

5:24

the news, and they're taking up

5:26

the discussion of whether and when

5:28

to hear dogs. And initially, there

5:30

are five votes to grant. So

5:32

that's as you know, smooth sailing

5:34

that is that the case has

5:37

more than cleared the bar to

5:39

proceed. All you need is for

5:41

to grant exactly. is the second

5:43

discussion though is in a way

5:45

more interesting because it's about time

5:47

angus and that's where there's disagreement

5:49

three justices justices alito thomas and

5:52

course such they wanted to move

5:54

pretty fast to they wanted to

5:56

hear the case that term to

5:58

think about that justice Ginsburg, who's

6:00

the court's sort of foremost protector

6:02

of abortion rights, has just died,

6:05

they want to move ahead pretty

6:07

much immediately. Now as we

6:09

know, not just from this reporting, but from

6:11

the legal world, this is a sensitive issue

6:13

in the law. So there's

6:16

this timing discussion with some

6:19

disagreement, just as Kavanaugh

6:21

makes this, my understanding

6:23

is that it's a pretty unorthodox

6:25

proposal. It's hard. I learned

6:27

that it's hard to say what's orthodox and

6:29

unorthodox at the court, because nobody really knows

6:31

what happened inside the Supreme Court. I think

6:33

it's safe to say that if it is

6:36

unorthodox, it's definitely from Brett Kavanaugh. So this

6:38

checks out. We

6:40

believe that this is unusual. And what

6:43

he says is that, listen, we can

6:45

delay granting, we can relist this on

6:47

the public docket through the spring. And

6:50

he's got a specific reason, which is

6:52

that there are other abortion cases winding

6:54

through the lower courts, and this will

6:57

give them time to watch that. But

6:59

it has another effect, which is

7:02

it is going to distance taking

7:04

the case from Justice Ginsburg's death.

7:06

It is also going to satisfy the concerns

7:09

of, or me satisfy the concerns of a

7:11

very important person who is Justice Barrett. I

7:14

think one of the most interesting things

7:16

that Adam and I learned is that

7:18

Justice Barrett was not somewhat

7:21

contrary to her public image, an

7:23

automatic yes to hear Dobbs. She had

7:25

hesitations from the beginning. And

7:27

in this discussion, she said, if you

7:31

hear the case this

7:33

term, I'm going to change my vote

7:36

from a grant to a deny.

7:38

And she cites these timing reasons. She says, I'm

7:40

brand new on the court. I

7:43

haven't even been here three months.

7:45

She essentially communicates that she is

7:47

not ready. So this re-listing plan

7:49

goes forward. There's this delay. The public

7:51

doesn't know what's happening for months and

7:54

months. There's a lot of odd on the

7:56

outside about whether they're going to take the case or not.

7:58

And then the twist is. that even though they are

8:01

gonna hear it the next term, she

8:03

switches her vote and she's a deny.

8:06

And it's only four votes

8:08

that Greenlight dobs, it's all

8:10

male justices. I

8:12

mean, you know, I guess what to

8:14

think about this? You know, obviously it

8:17

underscores that Brett Kavanaugh cares a lot

8:19

about what people think about him and

8:21

maybe also the court. Like we

8:24

know this from his entire

8:26

essence, right? And like general

8:28

persona. This is really giving the

8:30

Meredith Grey of the Supreme Court. I mean,

8:32

this is very pick me, choose me, love

8:35

me behavior. Yes, hands down.

8:37

And it also has the effect

8:39

of America's favorite father of daughters

8:41

gave the ladies of the United

8:44

States an additional year of rights.

8:46

Should we now think of him

8:48

as the greatest feminist on the

8:50

Supreme Court for all time? Not

8:52

an actual question for you, Jenny. No. But

8:55

to be fair, what

8:58

I think is also interesting is this window

9:00

of persuasion that it opens. And listen, you

9:02

know, what Adam and I talked about early

9:05

in the process is we said, we have

9:08

to report the facts and

9:10

other people are gonna have their interpretations

9:12

and that's the way we're gonna do

9:14

this because there are, I think, multiple

9:16

ways to interpret this. And as you

9:18

know, you can't actually mind rate the

9:20

justices. Right? We don't know.

9:23

We don't know what many of them were

9:25

thinking during this process. So

9:27

it does create this situation where

9:29

in this case, it was Chief

9:32

Justice Roberts and Justice Breyer, I

9:35

think really did not want the court to

9:37

take the case. They made the case against

9:39

it. Part of Justice Breyer's case was public.

9:41

You know, you heard it in that speech

9:43

he gave at Harvard Law School. He was

9:45

very open, I think, actually about the way

9:47

he felt. And the argument

9:50

we know that he used inside the court

9:52

was partially generational. I mean, think of Justice

9:54

Barrett. At this point, I believe she's 48

9:56

years old. He's 82. was

10:00

a justice when she was a

10:02

clerk, so that's the kind of

10:04

generational transition you're seeing, and

10:07

he's seeing as kind of a respected elder

10:09

of the court, you

10:11

don't need to rush. You just

10:13

got on this court. You don't need

10:15

to do this yet. So I appreciate

10:17

that we're kind of turning this over

10:20

and over because I know what the

10:22

facts that Adam and I can report

10:24

are, but I'm actually not sure we

10:26

a thousand percent know the full meaning.

10:29

I think this is wildly unorthodox, and I'm

10:31

also not naive about, I mean, there have

10:33

been many, many politically motivated

10:36

timing decisions, I think, made by the

10:38

court when it comes to cert grants. There

10:40

was lots of speculation, you know, with still,

10:42

I think, varying accounts of the decision making

10:44

around when to take up Casey, for example,

10:47

but there are lots of other historical

10:49

examples, both distant and more recent, where

10:51

I think people think that

10:53

political judgment was brought to bear on

10:55

the decision of when to take up a

10:58

case. So that has happened before. But to

11:00

my knowledge, an affirmative vote

11:02

being taken, and I think an affirmative

11:05

misrepresentation to the public via the docket

11:07

that no vote has been taken because

11:09

a case is still being relisted for

11:12

consideration and vote, that is an affirmative

11:14

misrepresentation that to my mind, we are

11:16

at least not aware of any precedent

11:19

for that. And that also strikes me

11:21

as just fundamentally different from kind

11:24

of wink and nod decisions to wait

11:26

before a formal vote has been taken. And so

11:29

I do think that this feels new. And

11:31

it does feel like misrepresentation that also involves

11:33

parties other than the justices, what were the

11:35

clerks told, both the chambers clerks,

11:37

like the, you know, the recent law grads who helped the

11:40

justices, but also the clerk's office within the

11:42

Supreme Court, that, you

11:44

know, maintains the docket that is public, the

11:46

public does have access to it. And it

11:48

seems to have contained misrepresentations for this period

11:51

between January and May. And all that does

11:53

feel, I feel actually really new and different to

11:55

me. Well, but then consider the

11:57

fact that the votes do change. is

12:00

functionally the same, but the score

12:02

is different. Yeah. And

12:05

do you have a sense for what changed?

12:08

That is, why Justice Barrett changed

12:11

her vote when they finally took

12:13

the vote later in May? You

12:16

know, again, deciding to grant the case.

12:19

They had already decided to grant in January,

12:21

but do it publicly. And

12:23

also in your reporting, you suggest

12:25

that the four men who stood

12:28

firm on their vote to grant

12:30

did so because they were betting

12:32

that Justice Barrett would still be

12:34

with them on the vote

12:36

to overrule Roe. And

12:38

I guess like, I'm just curious to hear

12:40

your thoughts on whether you got a sense

12:42

for what changed from Justice Barrett, but also

12:44

that reporting was so striking

12:46

to me because it

12:49

is about the justices confidence

12:51

and how the others will

12:53

rule on cases not yet

12:55

before them that they haven't

12:57

discussed in detail. Again,

13:00

kind of this misleading the public

13:02

angle when Republican senators have been

13:04

telling the public, we have no

13:06

idea how this woman who has

13:09

decried abortion on demand might rule

13:11

on the future of Roe versus

13:13

Wade and telling people it's

13:15

just wild to speculate. And here you

13:17

have the justices doing it and it

13:20

sounds like they're pretty sure. So

13:22

I wish I could answer your question

13:24

about why Justice Barrett changed her vote.

13:27

I mean, it's the right question. It's

13:29

a fascinating question in part because she's

13:31

such an interesting, I think

13:33

an important member of the court. And

13:35

I think understanding for better is a

13:37

really worthy goal for all of

13:40

us. The biggest hint

13:42

we found was in this law review

13:44

article we cited in the piece. She,

13:46

like many of the other justices, she

13:48

has written a kind of treatise on

13:50

when it's OK to overturn precedent and

13:52

when it isn't. And you

13:54

saw the quote in the story. She says that she

13:57

makes this point that if precedent

14:00

is changed too quickly after

14:02

a change in composition in the

14:05

court, it could look like sheer power

14:07

and politics prevailed instead of reason. So

14:09

we thought it was worth pointing

14:12

out that this was something she had thought about in the

14:15

past. So anyway, I certainly wish

14:17

we knew. I wish we knew. And

14:19

it seemed from oral arguments that

14:21

she seemed pretty firm in

14:23

her vote on the merits. Oh, yeah.

14:26

But again, I mean, listen, we are

14:28

not pretending to have complete omniscience with

14:30

this story. There's obviously a lot more

14:32

we would love to learn. And

14:35

that sort of brings us forward,

14:37

I think, to the question of were

14:40

these five votes a

14:42

thousand percent solid? We have reason

14:45

to believe they were. I mean,

14:47

the story starts with

14:49

these really fast joins, where this

14:51

coalition is coming together very quickly

14:53

and without comment. Then again,

14:55

we know that, you know, in the past, justices

14:58

have sometimes changed their votes. Maybe

15:00

one more beat on Barrett. And

15:03

I think your point, Jody, like it is

15:05

really important to try to understand better what

15:07

makes her kick, I think is correct. And

15:09

reading your story was

15:11

just a reminder. I have said before

15:13

on this show, probably repeatedly, that I

15:15

just find it endlessly frustrating that she

15:17

doesn't write in her own name, a

15:20

short concurrence that explains anything in her

15:22

voice about what she thinks of this

15:24

question, especially in light of Thomas

15:26

writes separately and Kavanaugh writes separately. And of

15:28

course, Roberts writes separately. And of course, there's

15:30

a dissent. But but I desperately

15:33

wanted to know it just a little

15:35

bit in her voice and not just

15:37

with this silent but outcome determinative join,

15:39

what she thinks about all of this.

15:42

And the backstory that you tell only heightened

15:44

the urgency of that question to me. And

15:46

so I think it's so right that we

15:48

all like just need to understand her. And

15:51

right now, she's not really helping. I Think

15:53

let's pivot to not the kind of

15:55

prehistory, not the taking up of the

15:57

question, but the actual opinion in Dodds.

16:00

Though as you start your

16:02

story by telling it is

16:04

shockingly fast how quickly the

16:06

circulated draft opinion picks up.

16:09

Votes. And memorably right.

16:11

one of the most jawdropping. Details.

16:13

In the story is that. Justice course. It's

16:16

joins within ten minutes of the circulation

16:18

of Drafted by Justice Alito, which I

16:20

think his speeches is obviously a speed

16:22

reader. And. I'm sorry yet know that did. These

16:24

are the questions. How do we

16:26

understand the join in ten minutes?

16:29

And. It's. Maybe. I'll just

16:31

say one thing you'd sort of allude

16:33

to this: It's not unprecedented North think

16:35

is it improper in all circumstances for

16:37

their to be side conversations and potentially

16:40

even side consultations about draft opinions and

16:42

happen sometimes when I. Clicked. There are

16:44

just as I think is not disabled from

16:46

sending to one person. In order to

16:48

do some you know kicking the tires have some. Reasoning

16:50

as they're working for an opinion A but

16:52

he is the suggestion that there was an

16:54

entire side conversation. That was happening. Between Alito

16:57

and the other justices in the you know

16:59

majority the grand were yet including Barrett who

17:01

initially have been a vote to grant such

17:03

a they had all fully immerse. Themselves in

17:05

the draft before the circulation and I have my.

17:08

Sorted suspicions that that and I'm not sure

17:10

that even could be true. But is that

17:12

your sense of how the votes likely came

17:14

so fast that they'd all already read and

17:16

indoor stolen at. What we

17:18

say in the story as at that's

17:20

apparently what happened and I think that's

17:22

a far as I can go on

17:25

that. as you say it's not an

17:27

unusual practice as the court to pre

17:29

circulated opinion and also at you know

17:31

I think it resists a question which

17:33

is. A can

17:36

help sad that endless justice

17:38

Alito. In his ability

17:40

to hold those five that together

17:42

he had lost one of his

17:45

people answered. Now granted to voting

17:47

for sure. It is very different

17:49

from voting on the merits that

17:51

you know. This is this he

17:53

saw as the.story riots. On the

17:55

one hand, the five votes looked

17:57

really solid. You know any other

17:59

hand, There be a possibility that

18:01

there was some wobbling, Sure. And

18:03

then you know. What we can

18:05

really say is that we know

18:08

that the Chief Justice and Justice

18:10

prior really wanted to change the

18:12

picture during the merits phase mean

18:14

we tried very hard to explain

18:16

to the read or because the

18:18

Master of the Core is so

18:20

are keen but essentially through the

18:22

way they count votes. The.

18:25

Chief Justice only needed one more

18:27

vote to change the entire outcomes.

18:29

It couldn't have come from a

18:31

liberal. We learned that justice prior

18:33

art of contemplating joining the Chiefs

18:36

fifteen week physician. That wouldn't have

18:38

made the difference because the vote

18:40

couldn't have come from the liberal

18:42

side that had to come from

18:44

from of leaders coalition. But I

18:46

mean one more person and the

18:48

entire outcome would have been different.

18:51

Kinds of say something about like

18:53

the ten minute joy in and

18:56

the possibility of like pre circulating

18:58

and opinion getting back to something

19:00

you said earlier Jody about kind

19:02

of like the craft and care

19:04

of carefully constructed opinions or less

19:06

a not so carefully constructed opinions.

19:09

This case was argued in December.

19:11

Justice Alito circulated in ninety eight

19:13

page draft in said the wary

19:15

ten minutes later neil course it's

19:17

join that You're telling me that

19:20

like Justice Alito took. All the

19:22

care a necessary to actually look through

19:24

all of the history right, produce a

19:26

draft with enough time to circulate among

19:28

his colleagues to allow them to do

19:31

all the say checking and all of

19:33

the parsing through all of the relevant

19:35

sources. that new growth that we're confident

19:37

enough within ten minutes to join it.

19:39

I mean, like that just strikes me

19:42

as so not judicious. And let's say

19:44

hypothetically, for whatever reason I don't know.

19:46

Justice Alito have been pre writing this

19:48

opinion overruling row for like the last

19:50

decade. Media and. Have like circulated at

19:53

the day after, right? like dogs

19:55

is argued and then maybe horses

19:57

right like has two months is

19:59

it before? The like signs on

20:01

still to join in ten minutes

20:03

strikes me as just a slap

20:06

in the face to his colleagues

20:08

and also to. A

20:10

missive. Like the American public

20:12

and women just so lack

20:14

of care and concern for

20:16

norms and judicious behavior. It's

20:18

like that that. Just

20:21

struck me as kind of appalling on the timing

20:23

thing. I totally agree we are, even if there's

20:25

pre circulation, I suppose. unless he's literally been reading

20:27

it for years which is not, I would. Not

20:29

discount the possibility, but either way

20:32

to read it carefully. If you

20:34

care or. And actually to review

20:36

the sixteenth century sources include it's and

20:38

actually and the text posts all of

20:40

them all the state statutes from like

20:42

the nineteenth century and to take time

20:44

with like the lines of doctrine equal

20:46

protection like analysis that rely you ask

20:48

us and take more way of the

20:50

law review or as as and they

20:52

did with this yeah opinion know there's

20:54

no way I know there's no way

20:56

they could have done that even if.

20:59

He circulated it within days of the oral argument.

21:01

There's no way they could have done a care

21:03

for. Them he has his

21:05

or her effect know seems it's like what? like.

21:09

Member of us any danger but we as

21:11

Ray any like. I do think that this

21:13

was an opinion many years in the making

21:15

like even if it was only and his

21:17

own sievert mind like the even thinking about

21:20

that for a while. But the point about

21:22

the two months like for the other chambers.

21:25

There. Is no Sab setting done at

21:27

all? We. Are

21:29

always interested in learning more about this

21:31

and more about the core it and

21:33

I think especially in the places where

21:36

this conversation is and release passing into

21:38

a little speculation as a post about

21:40

we know for sure if there's anyone

21:42

out there who wants to had information

21:44

and in give you the best way

21:46

to get to me and Adam which

21:48

is actually through the New York Times

21:50

tipped fine. You can google edits and

21:53

my times.com/tests and in my job as

21:55

ten build people's confidence in telling the

21:57

truth and I do think it's important.

21:59

that you know, the historical record

22:01

on this is correct. So

22:04

if there are people who hear this who want

22:06

to help or have other information about the court

22:08

that they want Adam and I to understand, please

22:11

do get in touch. And

22:13

that includes you, Justice Alito. If

22:15

you would like to write an

22:17

op-ed explaining how you actually spent

22:19

decades crafting this opinion and did

22:21

thorough site checking, we know you

22:23

have a soft spot for the

22:25

opinion pages of flagship legacy media

22:27

print. You

22:29

know he's taken that to the Wall Street Journal if he writes that op-ed. I

22:32

cannot. Can we tag

22:34

back to Justice Breyer and the effort to

22:36

broker a compromise? And I think it's really

22:38

important that you help to explain

22:41

the math to the public. I think

22:43

we saw some elements of that math

22:45

at oral argument where the chief justice

22:47

was trying to float this compromise position

22:49

whereby the court would uphold

22:52

the challenge to Mississippi ban, but

22:54

would stop short of overruling

22:57

Roe and Casey. And Justice Breyer,

22:59

I think, joins the effort to

23:01

try and get that compromise moving.

23:04

And apparently it might actually

23:06

have worked or at least have softened

23:08

some of the people in the middle.

23:10

And I imagine the ones in the

23:12

middle are probably Brett Kavanaugh and or

23:14

Amy Coney Barrett or at least one

23:16

of them. But then everything hits

23:18

a wall because the draft opinion

23:20

is leaked to Politico. So

23:23

did you get a sense in your

23:25

reporting about whether there had been any

23:27

headway with these justices in the middle

23:29

that were the targets of Justice Breyer's

23:32

and Chief Justice Roberts brokering? And

23:35

in fact, did the leak just sort of

23:37

stop this and kind of arrest that process

23:39

of compromise as it was just beginning

23:41

to gather steam? We can be

23:44

way more confident in talking about the

23:46

effect of the leak than we can in

23:49

seeing what might've happened if it didn't

23:51

happen. The effect of the leak was

23:54

to render these efforts pretty much hopeless.

23:56

I mean, there's a reason why these

23:58

votes are secret. They protect. justices who

24:00

may want to consider changing their votes.

24:03

In our reporting, we didn't find

24:06

some dramatic moment in which, you

24:08

know, one of the five yes

24:11

votes is, you know, contemplating

24:14

becoming a no. We would love

24:16

more information, but I also think it's

24:18

a very hard question to answer because

24:21

it's a hypothetical, right? It's a possibility that

24:23

was cut off and we'll

24:26

never know how things would have

24:28

been different without the leak. I

24:30

don't know. I got a sense that in that ninth

24:32

minute, you know, before the 10th, when he joined, Yogor

24:35

Sich was really hesitating. But

24:37

maybe that's just me reading between

24:39

the lines. So we should also

24:41

say, like, a lot of this

24:43

story that you report is unfolding

24:45

at the same time as the

24:47

Supreme Court is handling SBA, you

24:49

know, the bounty hunter law that

24:51

effectively nullified the protections of Roe

24:53

versus Wade in Texas before the

24:55

court formally overruled Roe. And

24:57

your reporting contains some, again,

24:59

just eye popping details about what

25:02

happened in that case. One

25:04

is Justice Sotomayor's final memo

25:06

or message to the conference,

25:08

which was just kind of

25:11

gut wrenching, you know, where she wrote to

25:13

Alito and the rest of the conference, you know, what

25:16

a pity that we cannot do the right

25:18

thing. And

25:20

then there was this other detail, which

25:22

is during the negotiations

25:24

over whether to stay this

25:27

law before it went into

25:29

effect September 1, Justice

25:31

Gorsuch was like out of touch and

25:34

couldn't be reached except by

25:37

Sam Alito. So like with

25:39

just a few hours until midnight, you say the court was

25:41

split 4-4. No, Gorsuch hadn't

25:43

written. He doesn't check in

25:46

that evening. Justice Alito reported to

25:48

his colleagues and then like

25:50

he just says, yeah, I'll decline to intervene

25:53

as well. What

25:56

was going on there? I Mean, they knew this

25:58

petition was coming to them. The and

26:00

she just slight disappears. I

26:03

mean for me. That.

26:05

Episode is really about two things.

26:07

One, it's about. Just

26:09

the portraits her of the moment one

26:12

really begins to fall because as you

26:14

know this Texas it's like. The

26:17

justices are preparing to hear dogs

26:19

right and this couldn't be a

26:21

bigger deal. The attorneys on both

26:23

sides are prepping it's you know

26:25

this is getting all the treatment

26:27

that a major case guests. And

26:29

here this Texas law comes and

26:31

recess ahead. And it's this extremely

26:33

restrictive abortion dell at All that

26:36

bans abortions in the state of

26:38

Texas. As you know, it's got

26:40

this very unusual enforcement mechanism that

26:42

makes it pretty much exempt from

26:44

Cetera. Overview and. When

26:47

it goes into effect, Row is

26:49

basically shouldn't be dead in the

26:51

second largest city in the country

26:53

before the Supreme Court. Even.

26:56

Really been able to. Hear the full

26:59

question And so. Part.

27:01

Of that reporting. For me was just

27:03

about like. In a way being president

27:05

and being historical witness said this happening

27:07

and then the second part of the

27:09

way it happened which has this is

27:12

a shadow docket case and so this

27:14

episode gives us a really rare look

27:16

at what is happening inside the shadow.

27:18

Docket and how chaotic it

27:20

feels in contrast with the

27:23

kind of orderly procedures. As

27:25

the courts usual operations and so

27:27

listen I can't tell you were

27:29

just to score such was or

27:31

what the explanation it was for

27:33

his absence is you can see

27:36

in a story we asked in

27:38

didn't get an answer and also

27:40

it hadn't substantive effect on the

27:42

law be has a lot of

27:44

the court declined to intervene it

27:47

went into effect they made an

27:49

announcement the next day but I

27:51

think is. The. mystery of

27:53

it is almost what's compelling

27:56

because it's to this major

27:58

no man's land The

28:00

law is changing and it's happening

28:02

in this kind of chaotic scramble

28:05

to midnight with one justice having

28:07

failed to vote Well jody,

28:09

um, you have given us one

28:11

of our favorite things this holiday

28:14

season. We were absolutely riveted. Um,

28:16

you had us with justice

28:18

alito at the printer I'll

28:21

just stop there. Um, it was amazing We

28:25

loved it thank you

28:27

so much for this really important and

28:30

probing deep dive into the courts and

28:32

her workings and thank you for showing

28:34

the public that they can and should

28:36

expect more In terms of transparency

28:38

from the court and some of what you have

28:40

revealed through your reporting. I think Presents

28:43

real questions about whether

28:45

the court has been truly transparent with the

28:47

public and I think that's important for you

28:49

to have put On the agenda. Well,

28:52

it's a pleasure to join you. Thank you

28:54

so much So Scootin

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for the planet. Our

32:08

second piece of breaking news is that

32:10

the Supreme Court, to no one's surprise,

32:12

granted the government and the drug manufacturers

32:14

cert petitions in the medication abortion case.

32:16

So that means the court will be

32:18

hearing that case this term. And we

32:20

wanted to highlight a few notable things about

32:22

that grant. So first, reminder

32:24

that Judge Matthew Kaczmarek in

32:27

the district court had actually revoked the

32:29

FDA's approval of Mephistone, which dates back

32:31

to the year 2000. His

32:34

ruling had it gone into effect

32:36

would have rendered Mephistone an unapproved

32:38

drug. Now, the Fifth Circuit reversed

32:40

that ruling, basically finding that

32:42

the challenge to the original,

32:44

you know, 23-year-old approval wasn't

32:47

timely. But the Fifth

32:49

Circuit also reinstated a bunch of

32:51

restrictions on Mephistone that the

32:53

FDA, the expert agency that has

32:55

studied this question, had deemed unwarranted.

32:58

And those restrictions, if they

33:00

go into effect, would dramatically alter the

33:02

availability of the drug. They would

33:04

prohibit telemedicine, they require in-person pickups,

33:06

and prevent distribution of the drug

33:09

under current labeling. So those

33:11

are incredibly consequential restrictions. And if the

33:13

Supreme Court affirms the Fifth Circuit, all

33:15

of those would go into effect. But

33:18

it's important to remember that at least as of

33:20

now, the stay of the Fifth

33:22

Circuit's order remains in place

33:24

and will remain in place until the

33:26

Supreme Court decides this case. So nothing

33:29

in the current landscape with the

33:31

availability of Mephistone will change until

33:34

the Supreme Court actually issues its

33:36

decision. And interestingly, the court

33:39

did not agree to hear the

33:41

Alliance Defending Freedoms cross-petition, which had

33:43

asked the court to review the

33:45

Fifth Circuit's holding that ADF could

33:47

not challenge the initial approval of

33:49

Mephistone, rendering it an unauthorized drug.

33:51

So that is perhaps some good

33:53

news as well. It is,

33:56

but I want to sound a note

33:58

of caution. I think, you know, we

34:00

have all kind of speculated that we

34:03

think the most likely outcome in this

34:05

case is that the court will dismiss

34:07

the challenge finding that the plaintiffs, you

34:09

know, this group of anti-abortion doctors, lacks

34:11

standing. And that will be

34:13

legally correct. That will be good in that

34:15

it will do away with these additional restrictions,

34:18

you know, on Mephistone. But

34:20

that will leave open the possibility

34:23

of a future Republican administration's revival

34:25

of the Comstock Act because it

34:27

would mean the court wouldn't resolve

34:30

whether the Comstock Act could be

34:32

interpreted in a way to prevent

34:34

the distribution of medication abortion and

34:36

potentially other drugs. And

34:38

you know, this ruling, if

34:40

it is what I think it will be dismissing

34:42

the case on standing, might blunt

34:45

public concern on these issues

34:47

in the lead up to the next presidential

34:49

election. In fact, I assume if Brett Kavanaugh

34:51

thought the court would actually go along with

34:53

the Fifth Circuit's ruling, he just would have

34:56

delayed publicly granting this case until next term.

34:58

And so it would be heard after

35:00

the fucking presidential election. And we

35:03

should say the federal government asked the court to

35:05

take this case now. I think they should have.

35:07

But there's also the Republican-led states motion to intervene

35:09

in the district court. And so

35:11

it's possible, right, if the US Supreme Court says these

35:13

plaintiffs don't have standing, the district court and Fifth Circuit

35:16

will come back and say, well, this other group of

35:18

plaintiffs might have standing and then just do the whole

35:20

thing over again, after the 2024 presidential

35:23

election. So that's my Sauer-Dauer note. I

35:25

think that's an important note of caution

35:27

to sound. It's also worth noting for

35:30

our listeners that the Comstock Act

35:32

is an 1873 statute that prohibits

35:34

the distribution in interstate commerce of any

35:36

articles that have a quote unquote, immoral

35:38

purpose. And historically, that was used to

35:40

prevent the distribution in interstate commerce and

35:43

through the federal mail service of

35:45

anything like information about abortions or

35:47

contraception, the articles themselves, erotica, anything.

35:49

It's been in a state of

35:51

relative destitute for the last 50

35:54

years or so, but it could

35:56

be revived to address the question

35:58

of sending abortion pills. through the mail.

36:00

And so that is the note of caution that Leah

36:03

sounds and it's a good one. We

36:05

should also note that the court took a

36:07

bunch of other really important cases, cases that

36:09

we're going to spend a lot of time

36:11

talking about in the new year. So if you're

36:13

excited about them like we are, and which is

36:15

to say we're excited about covering them, we're

36:17

not actually excited about them. Yeah, but please

36:19

be sure to recommend this podcast to your

36:21

friends. But to give you just a taste

36:23

of what's going to be on the docket

36:25

for next year, the court granted

36:27

certiorari in a case that will

36:29

decide whether a bunch of January

36:31

6 related convictions will actually stand.

36:34

The case is called Fisher versus

36:36

the United States. And it asks

36:38

the court to consider whether a

36:40

conviction under a federal obstruction of

36:43

justice statute that prohibits obstructing federal

36:45

proceedings and investigations requires proof of

36:47

evidence tampering or other impairments of

36:49

evidence, or if it can be

36:52

applied in the context of disrupting

36:54

an official proceeding, like for example,

36:56

the certification of the

36:58

electoral college. A number of January

37:01

6 defendants have been convicted under

37:03

this law on the theory that

37:05

the statute applies broadly to any

37:07

kind of effort to interfere with

37:09

an official government proceeding. But this

37:11

particular defendant, Mr. Fisher argues that

37:14

the law which was passed in

37:16

the wake of the Enron controversy

37:18

is really only intended to apply

37:20

to obstructions of federal investigations, where

37:22

the obstruction involves evidence tampering as

37:24

was the case in Enron. So

37:27

the question is going to really put it

37:29

to the textualist on the court because the

37:31

broad text of the statute I think could

37:33

apply in the context of

37:36

obstructing congressional Proceeding

37:38

that, these defendants are basically arguing for

37:41

a purpose driven approach to the statute,

37:43

which is to say that it was

37:45

intended to deal with Enron, not to

37:48

deal with January 6. So That's going

37:50

to be Huge. And It's also going

37:52

to have real consequences for the January

37:54

6 Election Interference indictment that Jack Smith

37:57

has filed against. Donald Trump because one

37:59

of. For charges against Donald Trump

38:01

is. That's obstruction of an official.

38:03

Proceeding. Well. It's what one of the

38:06

obstruction the other thing is conspiracy to the Iraq

38:08

so I think they're both. I think they're who

38:10

was who are are kind of tied up in or

38:12

at least. Connected to this petition the

38:14

court has granted. So there's certainly

38:16

trump implications for. This case

38:19

and separately Jack Smith has

38:21

attempted to leapfrog. The Dc circuit

38:23

and bring to the Supreme court in

38:25

a request for cert before judgment a

38:27

question of whether Trump is a he

38:29

That I have to say this like

38:31

it's a serious legal argument for Trump

38:33

says he's absolutely immune from criminal prosecution

38:35

because the court has had some cases

38:37

in which has said some kinds of

38:39

immunity attaches to the President, but certainly

38:41

never absolute immunity in criminal matters, it's

38:43

just a far fetched argument. A trusted.

38:45

That that's more of a a taser

38:47

first? Impressive because he never had a

38:49

President who has been criminally and died

38:51

at least of all four times. But

38:54

the really stupid argument that the double

38:56

the Devil's every argue it is that

38:58

silly, stupid stupid stupid argument they've gotta

39:00

hear that entail. A So

39:02

that's that's true, but that when I honestly

39:05

think there's no chance anybody on the supreme

39:07

court will go for and I think that

39:09

the absolute immunity of from criminal prosecution argument

39:11

is one that the court will consider seriously

39:14

ensured that has any integrity and dismiss without

39:16

much you know with Sf I seven she

39:18

has a very least. Another, he does a

39:20

certain an F and and all that. But

39:22

in any event, I think there's a real

39:24

chance because Smith is asking for expedited consideration

39:27

and the court granted that expanded. Consideration hasn't

39:29

granted a petition at this week. I

39:31

think Wednesday Trump's team has to respond

39:33

and so if the court wanted to

39:35

include this, grants this sir before judgment

39:38

and schedule special session the way remember

39:40

it did two years ago in January

39:42

is scheduled very very fast consideration of

39:45

the test or that's mandate or for

39:47

large employers to do the same and

39:49

schedule an early session in January before

39:51

they take the normal bench again on

39:54

and I really think they should do

39:56

this otherwise Trump will drag this argument.

39:58

Out until there is no way for. Mild have

40:00

been A for just before the election. Isn't

40:02

necessary eating a really important point. Just

40:04

the courts capacity for expedition like this

40:06

court can move fast when it wants

40:09

to know me and it is. move

40:11

fast Like Bush V Gore is a

40:13

party matic example of the court moving

40:15

very very quickly. It needs to move

40:17

quickly and the I think is ultimately

40:19

hoping to delay this until after the

40:21

election and then he'll win and if

40:23

if near with that happens and she'll

40:25

just make all of this go away.

40:27

Some in the court really has see

40:29

as an opportunity here to step in.

40:32

And make sure that the American people

40:34

have a clear answer about whether a

40:36

candidate for president is someone who actually

40:39

should be wearing an orange jumpsuit. One

40:41

other petition that the court has

40:44

already agreed to take perhaps because

40:46

this course, shamelessness knows no bounds

40:48

a court ostensibly was just a

40:50

sound of participating will also decide

40:52

whether the Federal Battery statue prohibits

40:55

payments to state and local officials

40:57

for action see officials already took

40:59

without requiring evidence of a quid

41:01

pro quo. In that particular case,

41:03

that petitioner, the defendant recede thirteen

41:05

thousand dollars from a government contractor

41:08

to which he had successfully steered

41:10

to contacts worth. More than a

41:12

million dollars! Cannot wait to hear what

41:14

Clarence and Sam think about your friends

41:16

giving you staff after the fact after

41:19

you've given them some pass on the

41:21

back. Lisa Black is also the council

41:23

of record for the defended in this

41:25

case, so you know this argument is

41:28

going to be one hell of a

41:30

good time. I just. Worry the core is

41:32

running out of corruption statutes to completely. Decimated.

41:35

Like there's just not that many starches, less that

41:37

they can. They will decimate them further neatly. I

41:39

If you weren't going to steer these contracts to

41:41

this defendant, they were going to be steered to

41:43

someone else that he might as well have taken

41:46

that. Way and

41:48

again. Like if you just want

41:50

to give tens of thousands of

41:52

dollars to government officials, isn't that?

41:54

Basically, you're right. mean there's not

41:56

unconstitutional to give a gift, exactly.

41:58

And. The we also

42:00

wanted to take the opportunity to circle

42:03

back on the story of Cakewalks kick

42:05

out his listeners will remember from the

42:07

last episode is the mother of two

42:09

received a fatal fetal diagnosis when to

42:11

the are multiple times camping and leakage

42:13

and requested an order at that she

42:15

could receive an abortion under Texas has

42:18

medical exemption. a trial court granted her

42:20

that order for The Texas Supreme court

42:22

stated and after we record our last

42:24

episode talks less the state in order

42:26

to get an abortion. When she

42:28

coughs left the state of Texas to

42:31

seek an abortion elsewhere, that like leading

42:33

booted the case. But the Texas Supreme

42:35

Court nonetheless released it's decision and in

42:37

that decision it explained why it was

42:40

beating the lower court's order allowing Key

42:42

to get an abortion and in. Doing

42:44

so basically. sword that caped cox.

42:47

Would. Not be able to get an

42:49

abortion in Texas but I will call

42:51

out the opinion. Because.

42:53

It is one of the most

42:55

gas lighting we have each judicial

42:57

decisions I think I've seen. as

42:59

late as we've received several questions

43:01

about it and so we want

43:04

to briefly know what it's sad

43:06

and what it didn't say. So

43:08

first, the opinion says that Texas'

43:10

abortion restrictions allow doctors but not

43:12

courts to determine whether a patient's

43:14

bodily functions are at significant enough

43:16

rest to warrant an abortion. Under

43:18

the medical exemption provision, this is.

43:21

Categorically, Insane. And it's not worth

43:23

the reality of what it is

43:25

like to have a seat or

43:27

diagnosis and then be in a

43:29

position where you have to terminate

43:31

the pregnancy and order to preserve

43:33

your own fertility and the possibility

43:35

of future children. So there's that

43:37

and. It's. Not doctors who

43:39

actually determine any of that is

43:42

actually law enforcement officers who are

43:44

threatening prosecuted As needed in this

43:46

very case is the doctors were

43:48

to perform the requested a person

43:51

on caped talks were called that

43:53

Attorney General Ken Paxton issued a

43:55

threatening letter to Three Sheets and

43:57

area hospitals were keep Cox's physician.

44:00

Admitting Privileges Warning the hospitals that

44:02

escape Cox receives an abortion there

44:04

there would be both civil and

44:06

criminal liability for the physician and

44:08

for at the hospital and leaving

44:10

that to the side for the

44:12

moment in the event that there

44:14

would be a prosecution. It's. Up

44:16

to courts to then decide whether

44:19

the medical exemption was actually a

44:21

clickable but. That is all.

44:23

Have no moment to the Texas Supreme Court

44:25

because the court basically use this idea that

44:27

it's all in the doctor's hands and the

44:29

only problem here with at the sector didn't

44:32

say some set of magic words as an

44:34

excuse not to grant any relief of any

44:36

kind here. And also notably it didn't have

44:38

to say anything at all because she'd already

44:40

left the stage and this was a mood.

44:42

Issues that this is just gas lighting for

44:45

gas lighting sake. They. Thought about it

44:47

for like ten minutes and then fired this

44:49

one off on the I'd minutes at the

44:51

magic time frame for issuing huge decisions about

44:53

women's bodies. The opinion also said

44:55

that maybe. The doctor just didn't use

44:57

the right words here that would actually

45:00

have brought the exemption into play. So

45:02

the doctor did. Not say verbatim.

45:04

Miss Cox has a life

45:06

threatening physical condition or. Say

45:08

that quote unquote, the doctor was exercising

45:11

her reasonable medical judgments and that in

45:13

that reasonable medical judgment and abortion was

45:15

necessary Because Miss Cox have a type

45:18

of condition the exception requires, but. The

45:20

doctor basically said all this. Did

45:23

not say the exact sequence. Of words

45:25

that the opinion suggested it to be sad.

45:27

It's but reading the opinion, I don't think

45:29

it's possible to conclude that the court would

45:31

have allowed Cox to get an abortion even

45:33

if her doctor had said those words and

45:35

in part of because Melissa just outlined. yeah

45:38

and also because the court went on

45:40

to say quote a woman who meets

45:42

the medical necessity exception need not seek

45:45

a court order to obtain an abortion

45:47

and quote as if to suggest again

45:49

that a court will never grant adjustment

45:51

saying an abortion falls within the exemption

45:53

in unless and until the abortionist for

45:56

foreign and the doctor with persecution and

45:58

pressing liability and yes the court had

46:00

the audacity to say are really does

46:02

not block a life-saving abortion in this

46:05

very case if a physician determines that

46:07

one is needed under the appropriate legal

46:09

standard. Again, while the state's chief fucking

46:11

law enforcement officer is threatening all of

46:14

the hospitals with prosecutions and liability. Yeah,

46:16

I mean, the opinion insists that the exception is

46:18

predicated on a doctor's acting within the zone of

46:21

reasonable medical judgment, which is what doctors do every

46:23

day. That was a quote from the opinion. But

46:25

again, the chief law enforcement officer of the state

46:27

is threatening prosecution. The exception does

46:29

not give doctors the ability to exercise

46:31

reasonable medical judgment as this case lays

46:34

bare. And even as the

46:36

Texas Supreme Court insists that the opposite

46:38

is true, there is absolutely no latitude.

46:40

This law gives a doctor to

46:43

exercise reasonable medical judgment and to do so

46:45

secure in the knowledge that they are

46:47

not going to face crushing civil

46:49

liability and potential criminal prosecution with

46:51

savagely long sentences and monetary penalties

46:53

attached. So yeah, like we said, like this

46:55

is a one of

46:57

the most gaslighting opinions

47:00

I think that we

47:02

can recall ever having

47:04

read. Strict scrutiny is brought to

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this episode. We

50:48

have some cord culture updates so we're gonna

50:50

start with those but then we will get

50:52

into our gift-giving guide our favorite things for

50:54

the holiday season. Tis the

50:57

damn season so write this down. First

50:59

up our favorite things court culture edition.

51:01

You know what we love? Democracy.

51:04

You know what we also love? When

51:07

progressives care enough about state supreme courts

51:09

to make a difference. You

51:11

know what we also also love? When

51:13

state supreme courts are about to do

51:15

something to benefit democracy. We

51:17

also love cheese and different segments that

51:20

really bring all of those loves together

51:22

and that's why it's one of our

51:24

favorite things. If it wasn't already clear

51:26

we are going to start by talking about the Wisconsin

51:28

Supreme Court and particularly the case that is

51:30

pending before that court challenging the state's

51:32

legislative maps. So before Thanksgiving

51:34

the Wisconsin Supreme Court heard oral

51:37

arguments in the case challenging the

51:39

state legislators state legislative maps. Now

51:41

the maps are not being challenged on the

51:44

ground that they are a partisan gerrymander. Though

51:46

they are yeah but that's

51:48

actually not the argument that the court is

51:51

considering. The argument before the court is basically

51:53

just that the districts in the maps are

51:56

not contiguous as required by the

51:58

state constitution. And that just basically

52:00

means that they are drawn in ways that

52:03

are logical and continuous as opposed to

52:05

broken up. And that's a requirement

52:07

in state law in Wisconsin and in, I

52:09

think, basically every other state. So

52:11

the argument right now is just that the

52:14

maps are unconstitutional on the grounds that they

52:16

do not comply with that requirement, not because

52:18

of the partisan gerrymandering issue. Yeah,

52:21

and they don't comply with that requirement

52:23

because some districts have detached territories, which

52:25

as the advocates noted is extremely uncommon

52:27

in the United States in districts. We

52:30

know that this is a SCOTUS podcast, but

52:32

as we've said many, many times, the

52:34

courts writ large, state, federal, et

52:36

cetera, are just so

52:38

important. And this case is super

52:40

important since it has the potential

52:43

to break Wisconsin's extreme gerrymander that

52:45

has locked in Republican control of

52:47

the state legislature, even

52:49

when Republican candidates don't get a

52:52

majority of the votes. And

52:54

Wisconsin Republicans are so

52:57

agitated, exercised about potentially

52:59

losing this undemocratic, gerrymandered

53:02

advantage that they actually

53:04

thought about impeaching newly

53:07

elected justice, Janet Protesalitz, so she

53:09

couldn't hear this case. And

53:12

the Republican affiliated or conservative justices,

53:14

or at least some of them,

53:16

brought that same energy to the

53:18

argument. We wanted to give you a

53:21

sense for how things went. So here

53:23

we go. Justice Rebecca

53:25

Bradley, perhaps the biggest Karen

53:27

on any bench, state or federal, was

53:30

ready to go, whatever it is

53:33

she does right out of the

53:35

gate. So let's play

53:37

literally the beginning of the

53:40

advocates' argument. Good morning,

53:42

and may it please the court, the

53:44

Wisconsin Constitution's redistricting requirements

53:46

are not optional. Council?

53:48

Yes. Council, where

53:50

were you? Where were your clients

53:52

two years ago? Because we've already been through

53:54

this. Redistricting happens once

53:57

every 10 years after the census.

54:00

All of the issues that you're bringing actually

54:03

could have been brought before this court two

54:06

years ago. So why did your clients

54:08

sit on their rights? We

54:10

granted intervention to basically anybody

54:12

who wanted to participate in

54:15

the litigation. I know your law

54:18

firm participated in the litigation

54:20

in Johnson. Where were

54:22

your clients? Why did they wait two

54:24

years? Good

54:26

morning, Justice Bradley. The

54:28

court's September 24, 2021 order

54:31

that granted the Johnson original

54:34

action petition set an October

54:36

6th deadline for intervention in that case.

54:39

That was well before the legislature

54:41

introduced publicly its map. It

54:44

was well before any party in

54:46

the Johnson case submitted their map

54:48

proposals. And it was months

54:50

before this court ordered the legislature's

54:52

map into place. There was

54:54

no possible way the clerk petitioners could

54:57

have known what their legal claims were

55:00

on October 6th, 2021. Good

55:03

morning, Justice Bradley. I

55:06

know. Like trying to be Midwestern

55:08

nice in the face of whatever

55:10

it is she was serving. Like

55:13

she really sprinkled on that Laura

55:15

Ingraham sugar onto her Wheaties that

55:17

morning. No, no, she had some

55:19

bad cheese curds. Like that

55:21

was bad cheese curd energy. Okay.

55:24

And within the first 10 minutes of the

55:27

argument, she was not just

55:29

obliquely making reference to things, you

55:32

know, related more to her colleagues than to

55:34

the argument or the advocate before her. She

55:37

was basically attacking her newest colleague outright.

55:39

So let's play that clip here. Everybody

55:42

knows that the reason we're here is because there

55:44

was a change in the membership of the court.

55:47

You would not have brought this action, right? If

55:49

the newest justice had lost her election.

55:51

No, your honor, that's not right. I

55:54

read forward actually announced to the

55:56

media in April after the justices election

55:58

that they. would be bringing

56:01

this very case before

56:03

the court. And wasn't

56:05

that based on that justice's pronouncements about

56:07

the maps being rigged? No,

56:11

Your Honor. I don't think anyone

56:13

said that this case would not be brought, which

56:15

is I think the premise of your question. What

56:19

I was going to say is that I reject

56:21

the premise that the issue of

56:23

whether or not contiguous means not contiguous.

56:25

I don't see that as a partisan

56:27

issue. It

56:30

is just the plain text of the

56:32

Constitution. And this court's decision and all

56:34

of the opinions in the Town of

56:36

Wilson case suggests to me, I think

56:39

rightfully, that this is not a controversial

56:41

question. That's also how

56:43

she attempted to end this argument

56:45

with the last advocate to appear before

56:48

the court. So let's play that

56:50

extremely normal clip. Counsel, I didn't

56:52

get an opportunity to ask prior

56:55

counsel about the due process

56:57

issue that I think both of you

56:59

have raised. So I'll ask you if

57:01

you consider this to be a fair

57:04

tribunal that will independently and

57:06

impartially consider your arguments in

57:08

this case when three justices

57:11

on this court ruled against

57:13

your clients and a fourth

57:15

justice conveyed her predetermined position

57:18

on the Johnson cases by campaigning on

57:21

a mantra that the maps adopted

57:23

in Johnson were rigged and saying

57:25

she agreed with the dissent in

57:28

the maps case. It's interesting when

57:30

only one justice on this court has

57:32

legal writing on this case actually called it this

57:34

case. Excuse me, Justice, I would appreciate the courtesy of

57:37

you not interrupting me and I would like to hear

57:39

a response to my question. Consistent

57:41

with the provisions of the attorney

57:43

oath. Just a

57:45

moment. You've been asked a question, please

57:47

answer. Are

57:50

you finished with the question? I am, thank you.

57:53

We reversed, we have

57:55

reserved the question of what

57:58

implications might flow from. the

58:01

disposition of the recusal motion. We're

58:04

not offering any additional argument on that

58:06

because that's been resolved

58:09

at this level and perhaps it will become

58:11

the subject of appeal, perhaps not. Extremely

58:13

normal is Justice Rebecca

58:16

Bradley's middle name. You

58:18

know, a few notes on these clips.

58:21

You know, it's notable that the lawyer

58:23

is basically like, I don't want to

58:25

go there, lady, like stop it. And

58:27

you can hear Justices Jill Kroski and

58:29

Anne Goode Bradley and Walsh Bradley trying

58:31

to tone this down. We'll come back

58:33

to this in a little bit. Like

58:36

they're saying, Rebecca, you're at a 12.

58:39

We're going to need you down to like

58:41

a three girl ASAP. So

58:44

that's kind of more tonal. The substance of what

58:47

she was saying was also pretty out

58:49

there. So at one point she,

58:51

and that's Justice Rebecca Bradley again, likened

58:53

the challenge to the maps, including the fact

58:55

that some of the challengers, but not

58:58

all of them are seeking new elections rather

59:00

than just new maps for the next elections.

59:03

Anyway, she likened those arguments to

59:05

efforts to throw out the 2020 election. And

59:08

that's not a joke. So let's run that

59:10

tape. That's an extraordinary remedy, which in

59:12

the past when it's been requested in Trump

59:14

v. Biden, this court rejected.

59:16

It's an absolutely extraordinary remedy.

59:19

And it sounds, you know,

59:21

there's many intonations about democracy

59:23

throughout the briefing. I can't

59:25

imagine something less democratic than

59:28

unseating most of the legislature

59:30

that was duly elected last

59:32

year. A few thoughts here. Did

59:36

she really reject that argument? The

59:39

KNO, I'm not so sure, Melissa.

59:42

I mean, just to recap, that

59:44

case that she cited, Trump v.

59:47

Biden was four to three.

59:49

And Justice Bradley, girl, you were

59:51

in dissent in that case. Like,

59:55

this is not something that you should be rehashing. And

59:57

again, just to note, Justice Bradley's specific-

1:00:00

talking about quill warrant to remedy

1:00:02

not necessarily about the merits of

1:00:04

this case ie unseating

1:00:06

versus requesting a mat maker help the

1:00:09

court evaluate the proposed map that the

1:00:11

Wisconsin court wouldn't have to do that

1:00:13

wouldn't have to unseat the representatives at

1:00:15

all it could just order a new

1:00:18

maps for the upcoming assembly elections when

1:00:20

all assembly members are up for re-election

1:00:22

and the new maps for half the

1:00:24

senators who have elections because Wisconsin Senate

1:00:26

terms are every four years

1:00:29

so again she's like talking about

1:00:31

stuff that doesn't even need to

1:00:34

be relevant here which is again

1:00:36

extremely extremely normal at some

1:00:38

point she seemed to take particular umbridge at the fact

1:00:40

the litigants were challenging the map which is a

1:00:42

map the court had been involved in there

1:00:45

was this kind of like how dare you suggest we might

1:00:47

have made an error quality to some of

1:00:49

her questions and just remind people of the

1:00:51

background the state Supreme Court so this court

1:00:53

actually selected the map in

1:00:55

previous litigation after the governor and the

1:00:57

legislature reached an impasse so here's Bradley

1:01:00

on that so we already

1:01:02

told the parties what the Constitution means

1:01:04

you do understand that in selecting

1:01:06

new maps the court was obligated to

1:01:08

ensure that the new maps would comply

1:01:11

with every provision of federal and state

1:01:13

law including the Constitution so I understand

1:01:15

your argument is that we didn't spend

1:01:17

enough time in the

1:01:19

majority opinion in Johnson one

1:01:22

addressing contiguity so we

1:01:24

wanted to touch on some recurring

1:01:26

themes and whatever it is

1:01:29

Justice Bradley has going on

1:01:31

one is you know we mentioned the

1:01:33

hostility she exhibited to her new colleague

1:01:35

Justice Prowta Saywitz she was also a

1:01:38

little aggro with her colleague Justice Kirovsky

1:01:40

at one point asking her when Justice

1:01:43

Kirovsky was participating in the argument

1:01:45

are you arguing this case so

1:01:47

let's play that clip but

1:01:49

could the court maybe well

1:01:52

the legislatures it's okay to

1:01:54

usurp the legislature's constitutional mandate

1:01:57

to redistrict but it's

1:01:59

not okay case for the court.

1:02:01

I'm not following your argument at all. It doesn't

1:02:03

make any sense. I'd like an answer to my

1:02:05

question, Justice, first. I think it's because the legislature

1:02:07

was a party. Are you arguing the

1:02:09

case? I mean, the state

1:02:11

courts don't have to be lock-stamping with the federal courts

1:02:13

or the U.S. Supreme Court in any way. That's definitely

1:02:15

right. But I mean, Alina Kagan

1:02:18

has, I think, really charted the course of

1:02:20

the banishment cases from the bench, and that

1:02:22

is pretty uncontroversial at this point. So Justice

1:02:25

Kravitz, he's just doing the same. Great tradition.

1:02:27

Yeah. And, you know, part of this, you know,

1:02:30

as the earlier clips suggested, it seems to be

1:02:32

that like Justice Kroski tries to get the argument

1:02:34

to the merits rather than having Justice Bradley, you

1:02:36

know, attacking her new colleague, Justice Prowdis-Sawit.

1:02:39

So this was earlier in the argument. We

1:02:41

are here today. And since one of the

1:02:43

issues is contiguity, I'd like to ask you

1:02:45

a couple of questions regarding contiguity. And

1:02:47

I think what you were saying, Kate, is

1:02:49

that Justice Bradley seems to be irritated that

1:02:51

Justice Kroski is doing the kind of thing

1:02:54

that happens at the Supreme Court, namely the

1:02:56

Supreme Court justices do an argument when a

1:02:58

justice asks a gotcha question that they think

1:03:00

is a gotcha question but has an answer.

1:03:02

Justice Kroski will sometimes interject to try to

1:03:04

get the argument to the harder stuff. And

1:03:06

I guess they don't like this. You know,

1:03:08

another time that happened is when another justice

1:03:10

asked the governor, you know, wasn't the governor

1:03:12

also trying to do partisan gerrymandering and secure

1:03:14

partisan advantage? And Justice Kroski interjected like, no,

1:03:16

not really, because we had directed the

1:03:18

parties to abide by the least change

1:03:20

principle vis-a-vis the maps that were already

1:03:23

gerrymandered for Republicans. Can we go back

1:03:25

to that whole point about Justice Bradley

1:03:27

basically attacking her newest colleague, Justice Janet

1:03:30

Protasewicz? Justice

1:03:32

Janet Protasewicz was like, okay, that's how

1:03:34

you want to play this. And she

1:03:36

got in some pretty good blows of

1:03:38

her own. Do you know of

1:03:41

any Wisconsin Supreme Court case that

1:03:43

decided the original and I emphasize

1:03:45

original meaning of contiguous in

1:03:47

Article Four, sections four and five? Your

1:03:50

Honor, as far as

1:03:52

the original meaning, I think Johnson decided it not

1:03:54

once, not twice but three times. And I'm trying

1:03:56

to get to get to that why Johnson was

1:03:58

correct with respect to... to its approach

1:04:01

to contiguity. What

1:04:04

is important in the constitutional text, contiguous is an

1:04:06

adjective, and you still have to decide what it's

1:04:08

modifying and in that verbal phrase to consist of

1:04:10

the procedures. And I just wanna stop you for

1:04:12

a second. Can you tell me where in Johnson,

1:04:14

one, two, or three, you

1:04:17

found language addressing the original

1:04:19

meaning? Your Honor, I don't

1:04:21

think the words original meaning appear

1:04:24

in Johnson, but in- Accurate, thank you. That's

1:04:27

a pretty sick burn from her, yeah.

1:04:29

I know, I know, respect, I like

1:04:31

it. From the Justice who said, a

1:04:34

W in protest say with, and two Ls

1:04:36

for losses in Kelly, I

1:04:38

like this Justice Janet, I like

1:04:40

it. And just kinda wanna

1:04:42

offer a tip of the hat to

1:04:44

her participating like this while her colleagues

1:04:46

and the Republican legislature were just relentlessly

1:04:48

attacking her for the high crime of

1:04:50

wing in election with progressive values.

1:04:54

High crime and misdemeanor of wing

1:04:56

in election. Yes. Okay, so

1:04:58

maybe one final clip, which is the Republican

1:05:01

justices spent a lot of time

1:05:03

caricaturing the argument the challengers were

1:05:05

making, how many Republican seats are

1:05:07

fair? How many are too many? And

1:05:09

Sam Hirsch, who was arguing the case

1:05:11

had a very nice rejoinder to that

1:05:13

that we wanted to play. What would

1:05:15

be neutral? What's the acceptable range of

1:05:17

Republican or Democratic landing assembly districts or

1:05:19

Senate districts that's within the permissible range?

1:05:23

The key question is which

1:05:25

maps are most likely to support

1:05:27

rather than forced majority rule? So

1:05:30

it's not about the percentage of voters.

1:05:32

What is that? What is that? Can

1:05:34

you be more specific? What is the

1:05:36

nature of the majority rule? How many

1:05:38

Republicans are permissible? How many Democrats? I

1:05:41

mean, what do you- Be really, I'm sorry,

1:05:43

your honor. Go ahead. To be really clear, in

1:05:45

a, look, this is

1:05:48

a very, very hyper competitive state and which

1:05:50

party's candidates get more votes in a

1:05:53

given year shifts from election cycle to

1:05:55

election cycle. In a year

1:05:57

where Republican legislative candidates get more votes.

1:06:00

statewide and Democratic legislative candidates,

1:06:02

they should control the legislature and

1:06:05

vice versa in a year where

1:06:07

Democratic legislative candidates get more votes

1:06:09

statewide, they should control the legislature.

1:06:12

It's that simple. It's called majority rule and

1:06:14

I hope the court stands up for it. Hey

1:06:16

dolts, that's majority rule. It's

1:06:20

called democracy. Look it up. All

1:06:23

right, now we've done some

1:06:25

court culture. We've talked about

1:06:27

Wisconsin. We've vindicated our

1:06:29

love of cheese. We've hailed Jill

1:06:32

Kirovsky, our favorite cast maestris slash

1:06:34

justice of the Wisconsin Supreme Court.

1:06:36

Now it's on... You can have

1:06:39

multiple, there are a lot of

1:06:41

cast mites. Multiple favorite things as

1:06:44

we are about to say. Yeah.

1:06:47

Wisconsin is literally replete

1:06:49

with jazzy justices who

1:06:52

are amazing. Overflowing. Overflowing. A

1:06:54

cornucopia of amazing lady justices.

1:06:57

But now let's get to a cornucopia

1:06:59

of gifts I'd like to see in

1:07:01

my stocking. All right, so if you're

1:07:03

listening, family members, here

1:07:06

we go. So Leah, I'm gonna let you start because I

1:07:08

want to warm up and get limber. Okay. Okay,

1:07:10

sounds good. So these are, I

1:07:12

think, more ideas for what to

1:07:14

give to others. Sorry, sorry.

1:07:18

But like, one thing is

1:07:20

personalized or unique stationery. I

1:07:23

just think it's amazing. Like, I got

1:07:25

some no surprise Taylor Swift cards that

1:07:27

I am using to like send out

1:07:29

notes. And I just I love them.

1:07:31

They make me happy sending them out.

1:07:33

I love getting like personalized stationery from

1:07:35

others. A friend of mine who's a

1:07:37

public defender has stationery that says her

1:07:39

name on it, as well as the

1:07:41

case citation for Gideon versus Wayne, right?

1:07:43

The case establishing a right to counsel.

1:07:46

Melissa, you have delightful personalized stationery. It's

1:07:48

just I love that stuff. So that's

1:07:50

that's one of my ideas. Another

1:07:53

maybe is a foot massager or

1:07:55

like muscle massager. I just think

1:07:57

that's like really nice to put

1:07:59

on. under your desk or to have

1:08:01

for like after workouts when you're like

1:08:03

getting ready to fight the patriarchy physically,

1:08:06

you know, it's nice to have one

1:08:08

of those like muscle relaxers to help you recover

1:08:10

after. Have you, or do you have a third one? Yes,

1:08:12

that's what I'm talking about. It's pretty great, yeah.

1:08:15

And they have like, some of the price points are pretty

1:08:17

high on like the big ones, but they have smaller ones that

1:08:19

are like under 200 bucks. And

1:08:21

they really, really work if you are like gonna

1:08:23

lift some very heavy weights to just channel your

1:08:26

rage and your sore afterwards, they can

1:08:28

be nice. I don't know about a foot massager, but one that

1:08:30

you can just put your feet on. Yes, no, put

1:08:32

your feet in. Yeah, like, yeah. Oh,

1:08:34

yeah, true thing. Yeah, those are actually

1:08:36

a lot less expensive than the Theragun

1:08:38

too. Yes, they are. They're

1:08:40

much less expensive. Few

1:08:43

other ideas. One is give yourself or

1:08:45

help your significant other or partner have

1:08:47

a weekend with friends. I just think

1:08:49

that making time and space for that

1:08:51

is just like really energizing for the

1:08:53

rest of the year. I basically think

1:08:55

back to like the amazing weekends like

1:08:57

I had with some of my friends

1:08:59

this summer, mostly at the Aeris

1:09:01

tour, like for the rest of the year. And I

1:09:03

don't know, I just think that like, that's a good

1:09:06

thing to give yourself and others. No

1:09:08

surprise law professor, I'm obsessed with books.

1:09:10

So I'll offer some of my favorite

1:09:12

book recommendations of the last year. Emily

1:09:15

Henry's Happy Place, Sarah McClain's

1:09:17

Knockout, Heather Cox Richardson's Democracy

1:09:19

Awakening, Steve Laddick's Shadow Docket,

1:09:21

Captain Webb's House of Odysseus,

1:09:23

Marissa Metzer's Glossy, Kacha Hoyer's

1:09:25

Beyond the Wall. Those

1:09:27

are some of my favorite reads from the last year. I

1:09:30

loved Glossy, that was a great one. I

1:09:32

love Marissa Metzer, I think she's amazing. Yes,

1:09:35

I know. I should read it

1:09:37

this year. It's so good. It's gonna be on

1:09:39

the beach for a week over the holidays. It's

1:09:41

about the rise of the Glossier empire. It's really

1:09:44

good. Exactly. Some

1:09:46

other ideas, more crossing over into

1:09:48

law territory, sub-stack subscription. So we

1:09:51

talk about Lawdork run by Chris

1:09:53

Gidner, one first run by

1:09:55

Steve Laddick. Abortion Every Day by

1:09:57

Jessica Valenti, on another program. Yes, yes. Yeah,

1:10:00

for sure. Let's shout out

1:10:02

Karen's corner on one first

1:10:05

street. Like, yeah, it's

1:10:07

delightful. It is. And

1:10:10

if you have access to it and the

1:10:12

know how, making some

1:10:14

custom musical beats of your

1:10:16

favorite SCOTUS clips, we suggested

1:10:19

or Kate suggested she wanted

1:10:23

audio of this clip from the

1:10:25

Darkasy argument made. So let's play

1:10:27

the clip. Really have wide

1:10:29

rep. I know FTC and others.

1:10:32

I'm a YA agriculture. I mean,

1:10:34

it's really all over for for

1:10:37

amicus free. And a strict

1:10:39

scrutiny listener stepped up to

1:10:41

the plate offering this

1:10:43

listener made audio. It's

1:11:05

just delightful. I kind of want to just put

1:11:08

it on as my soundtrack for all of my

1:11:10

upcoming writing projects and just like, get

1:11:12

excited. I

1:11:15

mean, there is a kind of house music quality

1:11:17

twist. I didn't know you really I didn't realize

1:11:19

this was your my met here

1:11:21

genre. Yeah, your met here as it

1:11:23

were for writing

1:11:25

sometimes. Yeah. Yeah, I

1:11:28

mean, it's like, it's got a very jock

1:11:30

down kind of vibe. Well, it's Brett Kavanaugh,

1:11:33

isn't that appropriate? Burke

1:11:35

Burke, work for

1:11:39

truly. Thank you. That was an amazing, amazing

1:11:41

holiday gift from you to all of us.

1:11:44

So thank you. Your name, leave her husband

1:11:46

for you. The marriage

1:11:48

is safe. All Right?

1:11:52

since you shamed me, Leah, these

1:11:54

are all gifts I would like

1:11:56

to give other people. First up,

1:11:58

I Think it's. Nice to have a

1:12:00

journal I'm I know people like to take notes.

1:12:03

On their I Pad or their I. Phone or

1:12:05

ever been to write things down and like

1:12:07

my husband says that I write down things

1:12:09

and like at my handwriting is like very

1:12:11

precise. He says that looks like serial killer

1:12:13

writing but I like to like sometimes go

1:12:16

back and look at like all the things

1:12:18

I read like I'll write down like ideas

1:12:20

for articles and outlines. I'm in my serial

1:12:22

killer handwriting and so when I write these

1:12:24

things down I love say no Le Journal

1:12:27

They're so nice They come and you are

1:12:29

spiral bound or regular. Brandon they had this

1:12:31

beautiful linen cover ads When you buy them

1:12:33

you're supporting say Nola. Which is a Detroit

1:12:35

company and I love. Detroit. And want to

1:12:38

support Detroit. So I love those Shinola journals.

1:12:40

They're awesome! And again

1:12:42

my favorite sayings to do for

1:12:44

myself but also for other people

1:12:46

as to give them skincare. And

1:12:49

my favorite favorite favorite interbrand is

1:12:51

true, but Chemicals that I love

1:12:53

so very very much because it's

1:12:55

absolutely delightful. But I have recently

1:12:58

gotten into a new skin caroline

1:13:00

called Biography and in particular I

1:13:02

love Third Night and Jade do

1:13:04

well as Cease Oils. So.

1:13:07

Fantastic! I'm the nighttime oil is

1:13:09

called petty grudges which is laying low.

1:13:11

I feel see and I left that

1:13:13

they are used by none other than

1:13:16

the other and then Meghan Markle and

1:13:18

I keep some washing Harry and again

1:13:20

on Netflix and I saw the bottle

1:13:23

on her dresser at Frog More Cottage

1:13:25

and I zooms in on my computer

1:13:27

and order to find out what it

1:13:30

was and it was biography and I

1:13:32

decided to try them and I

1:13:34

left them. so that and toxic. Highly

1:13:36

recommended. And I think right now they're doing

1:13:39

some kind of promo where you can get twenty

1:13:41

percent on the little trial set of the day

1:13:43

and night Save the Whales My third favorite thing,

1:13:45

which I think it's very. Good for the

1:13:47

lawyer said. Is my remarkable tablet

1:13:49

which. I used for taking notes. And

1:13:52

annotating larvae articles. I love it and

1:13:54

it's fantastic. Out I'd like it because

1:13:56

when I don't want to write my

1:13:59

serial killer. handwriting in my journal and

1:14:01

I want to upload something into a Word document.

1:14:03

This is perfect for that so I don't have

1:14:05

to take the extra step of typing it out.

1:14:08

I got this tip from awesomeudiajames at the

1:14:10

University of North Carolina. She had one. She's

1:14:12

doing all kinds of amazing things with it.

1:14:15

I got one. I absolutely love it but

1:14:17

what I do most of the time on it

1:14:19

is read law review articles so I really love that.

1:14:22

And then my favorite thing that I did

1:14:24

this year was I made the New Year's

1:14:26

resolution to read more fiction.

1:14:28

Not law review articles but actual fiction,

1:14:31

like fun stuff where I can imagine

1:14:33

an alternative world where judges adhere to

1:14:35

precedent and don't want women to bleed

1:14:37

out in parking lots. And so I got a

1:14:39

Book of the Month Club membership. That was a

1:14:41

suggestion from Melody. She gave me her

1:14:43

referral code so she got some free books for

1:14:46

it so a win-win for both of us. Every

1:14:49

month I get to pick a new set of books which I

1:14:51

love. So I got Hester

1:14:53

by Lori Lico Albanese which was

1:14:55

a retelling of the Scarlet Letter

1:14:57

which was fantastic. Black Cake

1:14:59

by Charmaine Wilkerson which is now a

1:15:01

Hulu series. It's fantastic. I haven't read

1:15:04

that. It's really good. I also

1:15:06

got DC Jones and the Six by Taylor Jenkins.

1:15:08

Read that. Love that. Love

1:15:10

that. Okay and I love the

1:15:12

Amazon Prime series and also I

1:15:15

love the album. The DC Jones and

1:15:17

the Stips album is a banger for

1:15:19

a fake band. Like they sound amazing.

1:15:21

It is a full media experience. It

1:15:23

is amazing. If they

1:15:25

came and played a concert I would go.

1:15:27

I don't care if they were made up

1:15:29

and I bought a t-shirt. I will go.

1:15:32

I thought it was fantastic. And

1:15:34

then I got into a whole Taylor Jenkins read

1:15:36

like whole. I just jumped into

1:15:38

the whole. I read Carrie's Soda Was Back which

1:15:41

was amazing and a bunch of others so I

1:15:43

really like those. And then one of my favorites

1:15:45

recommended by Melody was Lessons in Chemistry also now

1:15:47

an Apple TV series. Fantastic by Bonnie Garvin. It

1:15:49

was whole lives and I really liked it. I

1:15:52

liked it a lot. I loved

1:15:54

it. I thought it was great. And then

1:15:56

if you're definitely into reproductive justice and you

1:15:58

would like to imagine. a

1:16:01

more progressive future, I thought

1:16:03

Take My Hand by Dolan Perkins

1:16:05

Valdez was actually amazing. It's

1:16:07

basically a fictionalized account of

1:16:09

the sterilization case, Ralph

1:16:12

versus Health and Human Services. The Ralph

1:16:14

sisters, yeah. The Ralph sisters. And it

1:16:16

was just so beautiful and moving and

1:16:18

highly recommended. I also loved

1:16:21

Demon Copperhead, which is basically a

1:16:23

retelling of David Copperheels by Barbara

1:16:25

King-Solver, who won the Pulitzer Prize.

1:16:27

I also read The Guest

1:16:29

by Emma Klein, which is all

1:16:31

about shady, weird stuff happening in

1:16:34

the Hamptons. Definitely good. Because

1:16:36

I loved it so much, I thought Book of the

1:16:38

Month Club is something we should share with our strict

1:16:40

scrutiny listeners. And Book of the Month Club has come

1:16:43

through and offered us a promo

1:16:45

code just for you all. So the

1:16:47

Book of the Month Club gave us

1:16:49

a promo code, Scrutiny, and

1:16:51

they said that you could use it to get your first

1:16:53

book for just $5. So head on over to

1:16:56

bookofthemonth.com and use code Scrutiny to get

1:16:58

your first book for just $5. So

1:17:00

yeah, that's

1:17:03

what we're going to do this year. We're going to

1:17:05

read books, we're going to take care of our skin,

1:17:07

and we're going to write things down in serial killer

1:17:09

handwriting. And that is how we are going to dismantle

1:17:12

the patriarchy. Sounds like a plan. These

1:17:14

are good, Melissa Tibbs. So I'm going

1:17:16

to pick up with books first, a couple

1:17:18

of the ones that I was going to

1:17:20

mention, you already mentioned, Melissa, that Barbara King

1:17:23

Solver's Dean in Copperhead. I loved, you know,

1:17:25

we just talked about in one of our

1:17:27

recent episodes, we talked about the case involving

1:17:29

the Sackler and Purdue Pharma, bankruptcy settlement, David

1:17:31

Copperhead is not only retelling of David Copperfield,

1:17:33

but very elementary about the opioid crisis, and

1:17:35

an incredible book. And I feel like I'm a Barbara

1:17:38

King Solver completist, I think I've read everything she's written.

1:17:40

And it was gratifying to see her get,

1:17:42

I thought, the well-deserved Pulitzer for this book.

1:17:45

Okay, I also loved, just in terms

1:17:47

of things this year, Abraham Verghese's The

1:17:49

Covenant of Water, which was really beautiful.

1:17:53

I really liked Rebecca Mackay's I Have Some Questions for

1:17:55

You, which is one of the few novels that I've

1:17:57

read that is largely about podcasts.

1:20:00

called Kachafa that is really good if

1:20:02

you mix it with like ice water milk yogurt

1:20:04

whatever really good you need more

1:20:06

protein with age turns out and that is a

1:20:08

really good protein many of them taste bad this one

1:20:10

tastes great and then I

1:20:12

drink a lot of chai I drink tea and

1:20:15

chai and not coffee and Kolkata chai is

1:20:17

like a chai line that has a

1:20:19

couple shops in New York but you

1:20:21

can also now just order boxes and

1:20:24

it's like not super high sugar but

1:20:26

like really dense awesome combination of spices and I've

1:20:28

gotten into that this year and this

1:20:30

is like sort of related to Melissa's like kind

1:20:32

of a serial killer note-taking enemies list making

1:20:34

or related at least which is as kind

1:20:36

of like a productivity hack that I think

1:20:38

is for me new this year which is

1:20:40

just listening using a voice reader to a

1:20:43

lot of content that is you know not podcasts

1:20:46

or audiobooks but articles and sometimes book

1:20:48

manuscripts so I use a reader called

1:20:50

voice stream but I've also heard one

1:20:52

called speech if I is really good

1:20:55

and I find it really really

1:20:58

helpful to just like be able to sometimes

1:21:00

take in audio content of things I really need to read but

1:21:02

I just don't have time to sit down to read and

1:21:04

I've gotten very used to like the soothing sound of

1:21:06

the robot reading to me I mean it's no Meryl

1:21:08

Streep reading and Patches but I

1:21:10

recommend it you guys don't do that

1:21:12

I have it but I'm definitely open

1:21:15

to trying yeah are you still

1:21:17

pellet awning so I did want to talk

1:21:19

about this I so I have a bike

1:21:21

and I but we

1:21:23

have it upstate and I just have not been there

1:21:25

very much this fall and I've also just been running

1:21:27

much more so yes I'm using peloton a lot but

1:21:29

I'm mostly doing the runs and then sometimes like the

1:21:32

strength classes and stuff so I feel

1:21:34

like I've been like using a lot of different instructors than

1:21:36

when I'm mostly in the bike here are

1:21:38

the people I'm mostly running with these days Hannah Frank's

1:21:40

in who also does a lot of bike I like

1:21:42

her it does great classes I love her I'm doing

1:21:45

a lot of friends with Susie Chan ladies okay

1:21:47

well they're

1:21:51

like they're the real like wonk I guess that's

1:21:54

true actually I guess I do have a type those

1:21:56

are the three I most run with I also run

1:21:58

with like Robin Arson and Olivia Mottice and sometimes

1:22:00

Maddie Majacomo. But I guess we could do it.

1:22:02

I like Olivia's Taylor Red ride, for sure. She

1:22:04

has a really good, at least one Taylor Red

1:22:07

run, and I think another. She's got a couple

1:22:09

of Taylor Red. Yeah, sorry. I

1:22:11

meant the Taylor Red run, not ride. Yeah, that one.

1:22:13

Yeah, yeah, yeah. I think she might have those. She

1:22:15

has rides as well. Oh, okay. Okay. I

1:22:18

ride more. I don't run just because of

1:22:20

ankle problems. But I still really like Cody

1:22:22

as a cycling instructor. I

1:22:24

wish he would run. Can we please? No, he's

1:22:26

not a runner. He's a dancer. He's not a

1:22:29

runner. You would have to do like

1:22:31

75 minutes. No. It

1:22:33

would be so fun. I just like,

1:22:35

I love riding with him. It's always a

1:22:37

pick me up, always a pep talk. I

1:22:40

also really like Emma Lovewell as a cycling

1:22:42

instructor. I always like PR

1:22:44

on her rides, I think. Or that's like

1:22:46

where I get my PRs. And then I'm

1:22:48

also into their strength classes. I love Adrian

1:22:51

Williams strength stuff. Daddy. Yeah, I

1:22:53

really like... I would love to, yeah. Did

1:22:56

you say Zaddy? I like

1:22:58

Emma's core program. I also like Rebecca Kennedy

1:23:00

for strength classes as well. Those are

1:23:02

definitely my favorite strengths. I also do

1:23:04

some Pilates. I like Aditi Shah's 1989

1:23:07

Taylor's version Pilates class.

1:23:10

So that's kind of my peloton. I love it.

1:23:12

I always loved Pilates classes and bar classes are

1:23:14

great too. I'm not as into bar, but

1:23:16

I do like her Pilates stuff. So

1:23:19

I've fallen a little bit off the bike. Not

1:23:21

literally, but I just haven't been doing the bike

1:23:23

as much. When I do do the bike, I

1:23:25

think I do Cody the most and Hannah Frankston.

1:23:27

I like her Tabata rides. We

1:23:29

bought the Peloton Tread. So I actually

1:23:31

really loved that. Yeah, since I've been

1:23:33

doing a bunch of stuff on the

1:23:36

Peloton Tread. I love their hikes and their

1:23:39

walks and power walks. They had

1:23:41

this great learn to run program

1:23:43

that I did and that was

1:23:45

really fun. But I love Jocelyn

1:23:47

Thompson-Ruel, like Stan of Jamaican, British

1:23:49

Queen. She's amazing. I also

1:23:52

really enjoy Jermaine.

1:23:55

I forgot what his last name is. Yes,

1:23:57

Jermaine Thompson. I like his strength stuff. I

1:23:59

love that. Great on strength too. I've

1:24:01

been doing a bunch of strength training too and

1:24:03

again love Adrienne. I've been doing Callie Gullix it

1:24:05

I don't know if I meant to some people

1:24:08

find her annoying. I think

1:24:10

it's just like like she doesn't do Squats

1:24:12

that I don't want to do so I don't

1:24:15

mind doing squats Oh interesting I actually actually look

1:24:17

up What are the exercises that you're going to

1:24:19

be doing before I even get in and

1:24:21

like it's like some kind of weird like

1:24:23

lateral Curtsy squat that's gonna mess up my

1:24:25

ACL. I'm like, no, thank you and I

1:24:27

just move on but I love their outdoor

1:24:29

content So Kate, I don't know if

1:24:31

you did their outdoor runs when you were training,

1:24:33

but I think they're great They don't have that

1:24:36

many outdoor runs. So I think I've done all of

1:24:38

their outdoor runs So now I just do indoor runs

1:24:40

and run them outside But I wish they would do

1:24:42

their outdoor runs like Robin Arzone did

1:24:44

an outdoor run that had like Drake

1:24:47

Little Nas X it was like fan

1:24:49

tabular one just just Beyonce outdoor run. Yeah, that's

1:24:51

great Sure, like 20 or 30 minutes that is a

1:24:54

fantastic run. I've done multiple times Yeah,

1:24:56

so I do those a lot what I'm like walking

1:24:58

in the city like going places I like and I

1:25:00

get there so much faster and I feel like okay.

1:25:02

I did something. That's great That's a good I've never

1:25:04

so they actually give you some coaching while you

1:25:07

yeah, they're like never done that bitch and I'm

1:25:09

like, oh Highly

1:25:11

motivating Jeff

1:25:15

King is like if you're able if

1:25:17

you're consenting imagine my hand on the

1:25:19

small of your back urging you on

1:25:21

and I'm like Okay, you're allowed to

1:25:23

do I

1:25:28

Love it. I do like her I don't think she's ever asked me

1:25:30

for permission to put her hand in the small of my back But

1:25:32

I would grant it if she did well, it was an outdoor walk

1:25:34

have it You

1:25:38

know, it's also a nice time of year

1:25:40

give donations to organizations, you know in your

1:25:42

name or others names We've

1:25:45

obviously been talking a lot about the work

1:25:47

that the Center for reproductive rights has been

1:25:49

doing You know their work and the work

1:25:51

of abortion funds is really important right now

1:25:54

Some organizations that have been involved in

1:25:56

the ballot initiatives to secure reproductive freedom

1:25:58

are ready wine and blue,

1:26:01

as well as reproductive freedom for all.

1:26:03

There is also the Trevor Project, super important

1:26:06

in light of the wave of legislation targeting

1:26:08

the queer community or Crooked Leave Trans Kids

1:26:10

Alone Fund and Project. There's the National Women's

1:26:12

Law Center, as well as

1:26:14

some organizations that are helping incarcerated persons

1:26:16

like Right Behind Bars or the Second

1:26:19

Look Project, as well as

1:26:21

organizations that we have had guests on

1:26:23

this show before, like the MacArthur Foundation,

1:26:25

MacArthur Justice Center, and the

1:26:28

Appellate Project, too. In

1:26:30

addition to seconding everything Leah just said, I'll

1:26:32

mention a couple of the big global public

1:26:35

health organizations, Doctors Without Borders, Partners in

1:26:37

Health, both really, really important

1:26:39

organizations to support. Media,

1:26:41

it's been a brutal, brutal year.

1:26:43

Once again, enormous layoffs

1:26:45

in all kinds of media outlets. If

1:26:48

you have forgotten to renew your pledge

1:26:50

to your local NPR station, do that

1:26:52

before the end of the year. New

1:26:55

outlets that are cropping up because

1:26:57

there are some that are covering

1:27:00

local politics, so critically important. The

1:27:02

city is a new NYC-based online

1:27:04

magazine that has been great reporting.

1:27:06

Bolts magazine, which we've featured on the show before, which

1:27:09

is one of, if not

1:27:11

the best sources of information about

1:27:13

state and local politics, elections, democracy,

1:27:15

also a great place to support. So

1:27:18

throw those into the mix as well.

1:27:20

I would also like to shout out

1:27:22

NPR. I still support KQED, which

1:27:24

is my local NPR affiliate in

1:27:27

the Bay Area. I suppose

1:27:29

I should also branch out and support

1:27:31

WNYC here. I've switched to NYC

1:27:33

after BEEZ, which is the Chicago affiliate for

1:27:35

many years, and maybe I should just spread

1:27:37

it out a little bit because they're all

1:27:39

wonderful. I just kind of grew up on

1:27:41

KQED, and so I really love that one.

1:27:44

I would also encourage people to support

1:27:47

the 19th, which has

1:27:49

been doing absolutely amazing

1:27:51

work covering reproductive rights.

1:27:53

It's a women-run newsroom,

1:27:55

and it's absolutely fantastic. I

1:27:57

would also highlight some of the organizations that I work with.

1:28:00

closely with as a board member,

1:28:02

the Brennan Center for Justice, the

1:28:04

Public Rights Project, which is doing

1:28:06

amazing work around the country bringing

1:28:08

affirmative litigation to enforce rights at

1:28:10

the state and local level. Also, the

1:28:12

Guttmacher Institute whose research right now

1:28:14

is so important in this landscape

1:28:16

where reproductive health is so precarious,

1:28:19

Planned Parenthood, Federation of America,

1:28:21

If-When-How, both great reproductive rights

1:28:24

organizations. And then finally, the

1:28:26

NAACP Legal Defense Fund, which

1:28:28

does so much amazing work,

1:28:30

but in particular, I wanted to

1:28:33

highlight the work of their Marshall

1:28:35

Motley Scholarship Program, which provides scholarships

1:28:38

to law school for students who are

1:28:40

committed to returning to the South to

1:28:42

be civil rights advocates in that region

1:28:45

of the country where civil rights lawyers

1:28:47

are really in short supply. We talked

1:28:49

about this on the podcast with Joanna

1:28:52

Schwartz when we discussed her book, Shielded,

1:28:54

but it's just so important to have

1:28:56

this next generation of advocates and they

1:28:58

are really doing a great job, the

1:29:01

LDF, to make that happen. And

1:29:03

let me just throw one more in in terms of you mentioned

1:29:05

a few organizations on whose boards you serve, Melissa. I'll

1:29:07

throw in the Stevens Foundation, which makes

1:29:09

summer grants to law students doing public

1:29:11

interest work, in particular at law schools

1:29:13

that don't have subsidization or funding for

1:29:16

public interest summer jobs. And it's in

1:29:18

a real growth period. And so that's

1:29:20

a great place to support as well.

1:29:23

So we wanted to give a birthday shout out from Madeline

1:29:25

Peterson to her daughter, Ariel, at UCLA,

1:29:27

who is studying to take the LSAT in

1:29:29

April. And Ariel, I hear

1:29:31

you're interested in post-conviction and appeals

1:29:33

work. So kudos to you. That

1:29:35

is awesome. And that your golden

1:29:37

birthday is coming up. So a

1:29:39

very happy birthday to you. Happy

1:29:42

birthday, Ariel. One quick

1:29:44

programming note, the court is off for the holidays

1:29:46

and we will be off next week, but we

1:29:48

have a very special episode lined up for you

1:29:50

New Year's Day and you won't want to miss

1:29:52

it. That

1:29:56

was just a little teaser, just really that

1:29:58

Melissa cracked up. And all we're

1:30:00

going to tell you right now, clear

1:30:02

your calendar, new year's day. As we

1:30:04

get ready to go into 2024, we just want to remind you 2024

1:30:06

is a huge, super high stakes

1:30:11

election year. And there is so much to

1:30:13

keep track of that they're important voting deadlines

1:30:15

that you have to observe, volunteer

1:30:18

shifts that you should sign up for emergency

1:30:20

therapy that you're going to need. And

1:30:23

apparently, in the middle of all of that,

1:30:25

they still expect you to show up for work and do

1:30:27

the things that you are paid to do. So

1:30:30

this is why Cricut and Vote Save America have

1:30:32

created a 2024 planner to help you stay sane

1:30:35

and organized all through 2024. It

1:30:39

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1:30:41

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1:30:43

gives you much needed motivation, as well as

1:30:45

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1:30:47

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1:30:49

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1:30:51

get your planner and then spend all

1:30:53

of January 1st just writing in it

1:30:56

in really meticulous serial-coercion writing. Do

1:30:59

it. We will miss you next

1:31:01

week, but please stay tuned for the new

1:31:03

year. StrixKirtny is a Crooked Media production

1:31:05

hosted and executive produced by Leah Litman,

1:31:08

Melissa Murray, and Kate Shaw, produced and

1:31:10

edited by Melody Rowell. Our

1:31:12

associate producer is Ashley Mizzuo, audio support

1:31:14

from Kyle Seglen and Charlie Lelandis, music

1:31:16

by Eddie Cooper, production support from Adeline

1:31:18

Harringer and Ari Schwartz. And

1:31:20

if you haven't already, be sure to subscribe to

1:31:23

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1:31:25

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1:31:27

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1:31:29

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