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Strict Scrutiny is brought to you by Americans United for Separation of Church and State. The Trump administration's excessive Christian nationalist rhetoric is only building as we move toward the 250th anniversary of the Declaration of Independence. Those most caught in the crossfire are federal workers specifically. A multi-faith group of federal employees filed a new lawsuit against the United States Department of Agriculture for violating the separation of church and state and the religious freedom promised in our Constitution. Our friends at Americans United for separation of church and state received emails from multiple USDA employees. A handful of employees reached out saying the proselytizing Easter email sent by Secretary of Agriculture Brooke Rollins to more than 100,000 USDA employees is an abuse of power that violates the separation of church and state promised in the First Amendment. They are absolutely right. Con law, it doesn't have to be that hard. I mean, Constitution just straight up says, shall make no law respecting an establishment of religion. Seriously, what is with these guys and erasing the first sentence of constitutional provisions? That's what birthright citizenship is about, too. Anyways, the hits keep on coming from this administration, and Americans United is doing their best to keep up the fight against Christian nationalism. If you want to help, head to au.org slash crooked to learn more about their work and how you can get involved.

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Mr. Chief Justice, may it please report. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word.

She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

hello this is strict scrutiny your podcast about the supreme court and the legal culture that surrounds it we're your hosts i'm melissa murray i'm kate shaw and i'm leah litman and

this is an emergency episode we got four opinions today including two major immigration cases we wanted to cover right away these immigration cases written by sam alito which basically we

can stop the episode yeah we're done yep yep we're done uh basically folks uh you already know if sam alito's writing we're crying yeah we're talking about these cases right now because they are very very significant they will enable a lot of the trump administration's gratuitously cruel careless, and deeply, deeply consequential immigration policy. These decisions will free this administration of most legal obligations, maybe even give them a get out of law free card to just do their worst with regard to people who are here in the United States who they believe are not quote unquote, heritage Americans. Yeah. And there are a lot of what we might call

legal problems with the analysis on display in Sam Alito's two opinions. But also, there's just kind of a bottom line sort of takeaway that we wanted to start with, which is, you know, a line from Justice Sotomayor's dissent in one of the cases that kind of sums up the two opinions together. And that is, quote, the consequences of today's decision are predictable. More people

will die. And if you're thinking that sounds like Dobbs, you're right. Yeah. Also Sam Alito.

I was like, let's run that back again.

Yep, just one day off of the four-year anniversary, and we will do more of that. So we're going to focus in this emergency episode on the case about the administration's termination of temporary protected status programs for Haiti and Syria, and then the case about an asylum procedure that would allow the administration.

to avoid processing asylum seekers as required by law, so long as immigration officials stop a person at the border. As we said, there were two other cases today. We will say at least a few words about those in our regular episode that will be in your ear holes on Monday morning.

And despite what you may hear about this very non-ideological, non-partisan court, both of these opinions were 6-3, and both of them were about as bad as can be.

Yeah. Okay. So we'll start with the asylum case, Mullen versus Al Otro Lado. Okay. So as we said, 6-3 decision authored by Justice Alito. And the court basically gave the administration in this case a get out of the law governing asylum free card. The specific question in the case is whether an individual who has been stopped at or outside the border, quote, arrives in the United States for purposes of asylum law, which would mean the individual has to be allowed to claim asylum and have their asylum claim assessed.

Here, the court held that for purposes of the relevant asylum statutes, an alien arrives in the United States when the non-citizen crosses the border into the United States. As the majority reasoned, you don't say a running back is in the end zone when they are standing outside of it. Yes, this was Sam Alito's legal analysis of complicated immigration law. I think he got an assist.

I think he got an assist on that one from, you know who.

Entire logic here requires divorcing the word in from the entire structure of immigration law, its context, the fact that this provision exists in a broader statutory scheme, why this provision was enacted, and so on.

We should talk about the broader context of all of this right now. So in 2016, the Department of Homeland Security responded to a surge of asylum seekers at the southern border by implementing a metering system that imposes a daily limit on the number of asylum seekers that can be processed in a given day. And to enforce that policy, DHS officials would stand on the U.S. side of the border, and if the allotment for the day had been met, they would stop asylum seekers from entering into the United States in order to be processed. So if you reached your limit for that day, people had to stay on the other side of the border, even if they were presenting themselves, even if they were interacting with officials from the United States, despite the fact that asylum law exists and requires them to be processed. So there's this artificial limit, and even when you're right on the border interacting with U.S. officials, if they've reached the limit, you're out of luck. The metering policy, however, was rescinded in 2021. And if you're wondering, doesn't that make this case moot? Well, good for you. You could be a lawyer, but not for the Supreme Court. This is all to say that the court deciding to take up this challenge was totally a choice because this issue isn't really live anymore because this policy is no longer extant.

But evidently, the court just could not let pass the opportunity to tell the administration what it could do if it wanted to, say, revive a policy like this. And it is essentially handing, through this very tortured reading of this statutory term arrives or arrives in, an insane loophole to the administration. If you are two feet from the U.S. border in Mexico, that should not give the administration the authority to deprive people of human rights like the right to claim asylum or to ignore asylum protections under like putting aside international law under U.S. statute. But right now, the administration under this reading may be able to circumvent a bunch of laws protecting asylum seekers just by physically obstructing, preventing their entry at the border.

And I want to situate this case within a broader trend of just rendering legal protections, at least the ones these guys on the court don't like, completely unenforceable. So, again, we'll talk more about this on our regular episode. But another decision issued last week said protections for legal permanent residents at the border. Those don't actually apply at the border because, LOL. Second, the terms of spending programs, those can't be enforced against state officials that are obligated by them. Because why? We said so. And we made a fun little analogy. International human rights law. That can't really be enforced in Cisco. Why? Because Justice Scalia didn't want to. State court suits in Monsanto. That was an opinion decided by today. Those can't proceed because that would allow corporations to be sued. And we'll talk about that in our regular episode. So just greatest hits. Lots of bangers.

denying access to courts and severing rights from remedies and also just like big wins for the trump administration i think those are the two and corporations and corporations right who are obviously on the same side of these cases um those are two big themes i think of this week's decisions well i also think

Another theme here is we do what the fuck we want to do. Like, who's going to check me, boo? Like, I mean, to reiterate, the court didn't have to make this decision. Like, the metering policy is no longer in effect. The Trump administration, however, asked the court to take up this case and made moves about how maybe it could revive this policy. Therefore, there was not a mootness issue. Again, they wanted this case before the court because they wanted the go-ahead for basically obliterating what exists for protections for asylum seekers. And the court was like, yeah, that sounds great. Let's do that.

Hashtag YOLO, YOLO court.

We started off by referencing a line from Justice Sotomayor. She was not going to go quietly in dissent in this case. We were not in the courtroom on Thursday. So when the court issues decisions, they take the bench and the author of a majority opinion typically reads a summary. And when the dissent feels really strongly about the case, then they will sometimes also read what's called a bench statement. But I have never heard of like a reply from the author of the majority opinion. A rebuttal. There's no name for it because it doesn't happen. But evidently Alito on the bench responded to Justice Sotomayor.

Yeah. Yeah, so Chris Skydner at LawDork, Lawrence Hurley at NBC reported that Alito countered Justice Sotomayor with a further statement from the bench because he is the saddest, whiniest little man, never beating the allegations that he is nothing more than an angry 80-year-old grandpa whose brain has been addled by Fox News and needs to tilt at the wind. Sorry, Melissa.

So we do have a readout from The Hill on what happened in the courtroom. So as you just recounted, he first briefly read the majority's position. Justice Sotomayor then read her dissenting opinion. When she criticized the majority opinion as egregiously wrong, the Hill reports that Justice Alito leaned forward in his chair, propped his chin on his hands, and stared up at the ceiling. Okay, that's such a picture. Then when Justice Sotomayor commented about the majority opinion's reference to the language of arrival in the context of immigration and briefly used the example of landing at Reagan National Airport, Alito briefly set his gaze on Sotomayor. Then after she concluded, he softly cleared his throat before issuing a rare off-the-cuff response to a dissent. Not just rare, I think kind of unprecedented. I think unprecedented. The conservative justice appeared testy as he said that there was much more that he would have added if he'd known that Sotomayor would read her dissent aloud in full.

What a fucking sore loser.

It also is a winner. No, a sore winner. It's a winner. It's just... What are you talking about? This is just like, remember, obviously, the 2010 State of the Union address, right? When he shakes his head when Obama describes Citizens United and he just, like, cannot control himself. This is, I think, that energy. Oh, completely. And it's possible that he was stirred to taking this perhaps unprecedented step because Justice Sotomayor was unsparing in her dissent and evidently from the bench statement, too. So she said the court's opinion kind of amounted to, well, we said never again, but that turned out to be yes again after 80 years. Because as she notes, international humanitarian law, including protections for asylum, emerged after the Holocaust and the international moral reckoning it provoked. That's what this opinion largely

dismantles. Yeah. So she recounts, quote, one infamous incident when the voyage of the MS St. Louis in 1939, over 900 Jewish refugees attempted to flee persecution in Nazi Germany and were turned away only for many of them to be murdered. And Congress passed the Refugee Act in 1980, quote, because it did not want this country to repeat the mistakes of its past, being able to turn away refugees only for them to die horrific deaths and again this is what the court's opinion allows the administration to do to just effectively deny anyone asylum protections even if they have very meritorious asylum claims and the administration would otherwise be required to consider them under federal law and international law because they just managed to block them at

the border can i go back to justice alito i'm sorry like i definitely appreciated the history lesson both from you and from justice sotomayor and i think it's really useful context for people who aren't familiar with these statutes there is a provenance here and one worth remembering but i will just say justice sotomayor has a history of calling out her conservative colleagues on just like the batshit things that they do so if you'll recall in trump versus hawaii which i'm going to come back to at another point in this episode in trump versus hawaii she basically talked about the travel ban

and analogized it to the court's infamous decision in Korematsu, which was the case that basically greenlighted the internment of Japanese, people of Japanese descent and Japanese Americans during World War II. And the chief justice, you know, I felt like, it almost felt like he went back to the original opinion he'd wrote and just like, oh, by the way, that's not true. And we are dismantling Korematsu right now where it's no longer good law. It was never good law. And yeah, and so there.

He says, the reference to Korematsu gives us an opportunity to make explicit what had already been written in the annals of history, but we're going to do it ourselves.

Right. I mean, it was a more decorous kind of way to respond to her, but it's basically what Alito is doing. It's totally right. These guys hate being called on their shit. Alito's is just more bitchy and mean-spirited than the Chief Justice. And petty and trollish and small. But they're all doing – they hate being called on this. They hate being told.

Can I say on that all of them? Because as the Hill suggests, apparently, the Hill says that the other conservative justices displayed little reaction to Justice Sotomayor with several of them like Barrett, Gorsuch and Thomas staring down at their papers and Kavanaugh staring directly at Justice Sotomayor throughout her speech from the bench as if she was the problem.

Well, I mean, so again, remember that remark that Justice Sotomayor made for which she later apologized about, you know, I have a colleague and he's got rich parents and he doesn't know anyone who works a day job and he's just out of touch. And then she apologized for it. I mean, I think there's a lot of stuff going on here. Yeah. And, yeah.

They don't like to be called out. They don't like to be called out by her. And they also must have the last word. So whether that's in the form of an opinion or this kind of final statement, it's pretty wild. They just won 6-3. Like, you cannot let her speak.

But it's not enough to win. You must be celebrated as the most amazing justice who is doing perfect law and no politics as well. No one can criticize them.

On that tip, do you remember after Dawes when the chief justice issued his year-end report to the federal judiciary? And he was like, you know what this all reminds me of? It reminds me of mass segregation. Segregationists, yeah, where these judges stood up for the Constitution and the rule of law in the face of massive resistance, and all these segregationists came for them. Like, basically, you ladies who want rights over your body, you're basically like segregationists, and us, we're those noble judges standing up for the Constitution and the rule of law and taking away rights.

I think they're trying to segregate us from controlling your body. Ain't no thang. We would like to integrate you into Trad Wife Life. This episode of Strict Scrutiny is brought to you by Alloy Health. Let's be honest, aging, not always awesome. I mean, take a look at Sam Alito's skin, sleep disruptions, hot flashes, brain fog, and more. I don't want my brain to work like Brett Kavanaugh's. Menopause is inevitable, but it's also treatable. Almost half of women go more than three years before seeking relief from menopause or perimenopausal symptoms. Why would we do that to ourselves? It's because 43% of women reported that their doctors never even mentioned menopause hormone therapy as an option for treatment. Another 40% didn't know where to go for a solution. Alloy can help you feel and look your best through menopause and beyond, offering unlimited access to expert physicians and safe science-backed treatments for your symptoms, skin, hair, all delivered to your door. Everything is done online from the comfort of your home or anywhere. No waiting for an appointment or a line at the pharmacy. Alloy is fast, accessible, and their treatments actually work. Here's how it works. Step one, complete your intake. Alloy solutions are available by prescription, so you'll need to complete an intake form and patient verification. Step two, receive a treatment plan from your doctor. You'll be matched with a menopause specialized physician who will create a personalized treatment plan tailored to your specific needs. Step three, get your three-month supply. Once approved, Alloy ships your prescription directly to your door with automatic refills. easy peasy. Look, I can't function without sleep, just a fact. So the prescribing physicians with Alloy are there to help with hot flashes and night sweats keeping you up at night. I cannot recommend Alloy enough. Join the 95% of women who tried Alloy and saw relief in the first two weeks. Head to myalloy.com and use the code strict and tell them all about your symptoms and you'll get a fully customized treatment plan and unlimited messaging with your doctor. Plus, you'll get $20 off your first order today. Head to M-Y-A-L-L-O-Y.com and use code strict to get $20 off your first order. Strict Scrutiny is brought to you by Wild Alaskan Company. We eat pescatarian at home, but we don't eat fishy smelling fish. You know, the stuff that doesn't taste fresh and just has that yucky smell and yucky texture. Ruins the meal. Really doesn't matter how much sauce you use. trust me, I've tried. But I don't want to give up eating fish at home. I basically think of myself as part dolphin given how much I swim, so I need the fish to keep me swimming. Wild Alaskan Company offers the best way to get wild-caught high-quality seafood delivered to your door on your schedule. Here's what Wild Alaskan Company has on tap. Each Wild Alaskan box comes with individually portioned fillets, vacuum-sealed, easy to prep, and great for any meal no matter how quick or elevated. It makes it super easy to portion size out the meals, and everything is pre-cut for you. And all their fish is quick frozen, fresh from the Alaskan waters, which helps lock in its

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Yeah, because if you thought it was bad, it somehow gets so much worse in the TPS case. Yes. Because this is another 6-3 Sam Alito authored decision. And here the court basically said, one, immigration statutes, or at least some of them, maybe all of them, those aren't real laws that are actually enforceable against the Trump administration. Specifically, here the court said that the federal statutes governing this temporary protected status or TPS designation and the kind of revisiting of the designation either to terminate or extend it, that those statutes which require certain procedures be undertaken before any modification is made and specifically before TPS status is canceled, these statutes and their requirements are basically not subject to judicial review, full stop.

Just to be clear, that's really important that the court is sort of hanging its hat on these are just not reviewable because there is very little question that the Trump administration failed to comply with the letter of the law here. As we discussed in our live show in New York City last week, the New York Times has reported and emails confirm that the Department of Homeland Security canceled the TPS program for Haitian nationals without waiting for the required statutory consultation with another department. in this case, the Department of State. But don't worry, the court manages to avoid that unfortunate factual and statutory wrinkle by concluding that the statute doesn't permit review of the Secretary's determination that TPS should be rescinded. And to be very clear here, the majority gives the term determination a very broad meaning that includes not just the decision to rescind TPS, but basically the, quote, chain of events that leads to that decision. And this again sparks the man with the butterfly meme. Is this textualism? Oh, for sure. For sure. As

Justice Kagan said, quote, very broad would be one description for that reading of the term determination. Very strange would be another. But in addition to rejecting the statutory claims, The claims that the executive branch had not followed the laws as far as the required procedures they had to follow.

Can we – before we go on to the constitutional, can we just – can I say one more thing about the statutory? Because those are the two arguments in the case, right? Let the statutes weren't followed. It's a statutory argument and then there's a separate constitutional argument that also fails, Leah. We'll talk about it in a minute. But I just I was trying to figure out whether because in the oral argument, I thought the plaintiff's attorney, you know, tried, I think, very kind of savvily to say, if you guys accept this no judicial review argument, then literally anything goes. So administrations could cancel everybody's TPS. They could like grant TPS to every country in the world. And like they were trying to appeal to the conservative sensibilities of the majority by saying, what if a Democratic president decides to like let everybody in the world in using TPS designation? And I just couldn't tell whether Alito tried to be like to leave a little crack open so that if there is a future Democratic administration that uses TPS in a way that is too expansive. are too generous, they might still say, well, we didn't say no judicial review, just not much judicial review. Like, I don't know if you guys had a read on that, but it felt like there might have been some effort to kind of like see around that corner and make sure that if it came to actually reining in expansive use of this authority, then they'd be very able to do that.

Kate, that's never going to happen. We're never going to have a Democratic president because we're going to fuck up the election so hard, change these districts so incredibly that it's going to be Republican rule forever.

Yeah. But they may be just like belt and suspender in case they are unsuccessful somehow in doing that. So anyway, I just wanted to throw out that possibility. But sorry, Leah, you're going to talk about the other, the constitutional equal protection argument.

Yeah. So the court also rejected the claim that the cancellation of TPS for Haitian nationals was the product of unconstitutional animus and racial discrimination. So I think in one of the more cowardly and craven moves Sam Alito has made, which is saying something, he refuses to even quote and include the foul racist remarks that the president made about Haitian nationals before his administration canceled the TPS program for Haitian nationals. To my mind, like, he kind of goes, see no evil, hear no evil, speak no evil, and applies that to the horrific, blatant racism, which included the grotesque remarks from the president about how Haitians have AIDS, were eating cats and dogs, would poison the blood of the country, and how Haiti is a shithole country, when, according to the president, we should really be taking people from Norway and Sweden. This apparently, to Sam Alito's delicate eyes, ears, and pen, who could not even recite this, is not racist, which means I think the effect of this ruling is to legalize racism. You know, as Justice Kagan noted in her dissent, the majority declines to put these statements in print. Like, they apparently find the statements so repellent and racially inflected that they don't go in the opinion. And just to situate this case kind of in some context of the court's other jurisprudence, talking about poisoning the blood of the country isn't racist, but you know what is racist? Enforcing the Voting Rights Act and multiracial democracy. Also from the pen of Sam Alito.

Yeah. Not from his pen, but also trying to ensure a modicum of diversity in institutions of higher learning. Yes. Very racist. Also relying on state laws from Reconstruction to justify restrictions on gun rights. We'll get to that in our next episode. That too is racist. I mean, those laws were racist, but the reliance on it being racist is sort of an innovation of this majority. Yeah, so there's lots of examples, but Trump's words, those aren't among them.

Yeah. And also, you know, what is evidence of animus? Again, not saying that Haitian nationals will poison the blood of the country, but talking about how if someone wants to do business in a state, they might have to comply with laws that go against their religious beliefs. That is animus. Rule of law. Rule of law.

Yeah. I mean, so Alito actually has the gall to basically say, you know, he won't actually reproduce verbatim any of these statements. And then he has the gall to basically say that this rhetoric is just the rough and tumble of politics. Like he says, quote, I almost can't even believe that he put this in the opinion that he did. Just read it. He did. I will. Political discourse by prominent public figures is increasingly couched in terms that would have scandalized the public just a short time ago. And the statement cited by Miat respondents, the plaintiffs in the case, in the Haiti case, especially those concerning Haiti and Haitian immigrants to this country, exemplify this development. It's just the coarsening of the culture, ladies. Everyone does it.

Well, also, one additional thing he says about them, he says, quote, the respondents, that is the federal government, identify a strong race neutral explanation of these official statements. The present administration's general stance on immigration and its obvious antipathy toward past administrations, TPS policies. I'm sorry, is their general stance on immigration racist? And also, did they not like the previous administration's TPS policies because they admitted black people? Like, what the fuck?

Their xenophobia completely cleanses the racism. Like, it's just wild reasoning.

Well, I mean, are you surprised by, I mean, like, this is kind of like partisan versus racial gerrymandering. It's not racism, it's xenophobia. It's not racial gerrymandering if it's partisan gerrymandering. Duh. Again, I think all of this smacks of the court's decision in Trump versus Hawaii, which upheld the third iteration of the travel ban, the one that had been sanitized to some degree. And I really think, although it's...

it's against type, you should read these cases in tandem with Kelly and the other Voting Rights Act cases where the court is, I think, giving birth to a new understanding of discriminatory intent. And basically, it's this, like, no one white is ever being racist when they say blatantly racist things, or when they organize extant government structures to disadvantage racial minorities. That's not racism. Like the intent isn't there. That can be explained by other race-neutral criteria or events. Instead, as Leah alluded to before, what actually gives rise to racism is thinking about diversity, thinking about equality and equity, suggesting that the nation's history may be punctuated by episodes where we disadvantage and even subjugate certain groups. And I'm thinking here specifically of the recent Third Circuit case that clears the way for the National Park Service at the direction of the president to eliminate all references or many references to slavery in a public exhibit on Independence Mall. That's the real racial intent here that is discriminatory and subject to judicial censure. The rest of this, you know, it's all fine. Like there are perfectly plausible race neutral explanations for all of these things.

Yeah, I can't tell if it's like plausibly race neutral or the coarsening of our politics,

Like both or both or right. Yeah. Anything but racism. Yeah. Yeah. I mean. Yeah. Okay. We are going to do some quoting from Elena Kagan's dissent, which I think sums all of it up pretty well. She says the plaintiffs are entitled to stay in the country while these suits go forward. Remember, this case, these cases came up like way early. Like there was there have been some discovery, but the cases were still ongoing. So she says that. And then she says, respectfully, I dissent from the court's decision that they may instead be put on the next plane. She kind of goes out of her way. It's interesting. At one point, she says, you know, she does call the majority out in refusing to actually reproduce the racist statements at issue in the case. But then she also says that those actually contrast with the majority's quite respectful discussion of the conditions in Haiti. And it's like the majority's refusal to denigrate Haitians as a group. I'm not quite sure. She goes out of her way.

The bar is literally in hell. Way too nice to her colleagues. Yeah.

I mean, this is why it is so hard. And Melissa, you said this, you know, calls to mind Trump versus Hawaii. Like, absolutely. I have a piece that I think will be out by Monday. I think this is just so much worse because in Trump v. Hawaii, I at least read it as having, There is this like through line of, A, the president's – there is at least a distaste that the Roberts opinion is able to muster about the statements, which you don't have in the Alito opinion because like he won't even explicitly talk about them. So it's not enough, but it's more. But I do think you also have, at least on my read of Trump versus Hawaii, this like the tenor of the opinion is, OK, the president said some crazy stuff, but there was this interagency process. And like those experts like cleansed the process of like whatever discriminatory taint the president's statements might have conferred.

John Roberts is way better at this than Sam Alito. I hear you saying.

And he assigned him this opinion.

He assigned him both these opinions. And staying silent, not writing anything separate, I thought was a very revealing choice because, yeah, he doesn't have, you know, even if he wanted to call the administration out in the way that he did in the census citizenship case and the DACA rescission case, he doesn't have the votes to do it. But he does have his vote and he decided to give his vote fully and without a separate writing at all to Sam Alito and this appalling opinion.

Melissa says, see which got your voice slash pen, John? Like, what's going on?

Yeah.

Well, I mean, the best part is Samuel Alito is only too happy to carry water for the chief justice to do this. I mean, like, I mean, have you ever seen a more willing foot soldier? Yes, sir. I'll jump into the racism.

Yes.

I'm sure he asked for these opinions. He wanted to write these cases.

No, no. I'm sure he did. I mean, but I mean, like, my point with regard to, you know, it's gotten so much worse, like, I don't absolve John Roberts of it. I mean, like, I think he just makes it look more decorous in Trump versus Hawaii. He's better at it. He's better at making it look just, you know, okay, it's not totally like, there are reasons. And here's why, even though we know that Trump said those things. And of course, they inflected the process by which that executive order was promulgated. of course it did but now they don't even care about just sort of like okay we're gonna deal with this but there are actually these other reasons now they're like you know what there's no racism here because what there really is is xenophobia and that's okay that's like it that's a choice i mean it's the same way we used to hate partisan

gerrymandering we wrote a whole decision about how unseemly partisan gerrymandering is and now you know i john roberts i'm going to cede the pen to sam alito to talk about how partisan gerrymandering is your birthright if you're a republican completely you know what even though this is a short episode i think we need to have our evergreen segment we need to talk about justice

clarence thomas do we i think we do yes because you know what he would go further shocking these Alito Opinions. Not far enough for Clarence Thomas. No. How far does he want to go, Leah? He would make it a fish a fish. He would say that the equal protection guarantees actually don't apply to the federal government at all. So even if it was racial discrimination, that wouldn't be unconstitutional. Fifth Amendment, you in danger, girl.

Yeah, that's where we're going. Invitation to basically rescind the Fifth Amendment, which includes a due process clause that has been interpreted by this court in Bowling v. Sharp, a companion case to Brown v. Board of Education to include an implicit equal protection guarantee that applies to the federal government as much as the state's. And apparently, Clarence Thomas takes that personally.

Well, if Justice Thomas has to live through the indignity of seeing the court enforce the first sentence of the 14th Amendment, he really wants to take the Fifth Amendment out to the woodshed. You know, he needs a little consolation prize.

Anyway, folks, if in the next couple of weeks, probably next week, when we get the court's decision in birthright citizenship and you hear all of those hot takes talking about how decorous this court has been, how they really stood up for the rule of law, how they stood up for the Constitution, and they went toe to toe with this president and did not blink, I want you to come back and run this episode back. And just think about all the things the court did on immigration before it did that one thing that it actually could have done a year ago, but didn't.

Yeah. Please do not forget everything that happened this week, including how the court, again, enabled a lot of the racist, xenophobic elements of Trump's immigration agenda, sometimes gratuitously, right? Just telling them they could do something they weren't even doing at the time.

Yeah.

Yeah.

Yeah.

All right, ladies. Till next time. Opinions coming down. Well, we will reconvene tomorrow. We will have an episode in your ears and eyes on Monday. The court will have more opinions. There are eight to go. So probably Monday and Tuesday. Is that what we're assuming?

Definitely Monday. And Monday will not be the last day. I am hoping it's Tuesday and it won't go into July because what is taking them so long? I know.

Girls are fighting. No, I'm the most right wing. No, I'm the most right wing.

is this racism or are we saying racism is legal we need to mull over that a little bit

longer i would go further and overrule the whole constitution actually

all right well we got a couple days of suspense until we figure out which of the above it actually is why not

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