Can Trump Mobilize the Military Without California's Consent?
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Hey, listeners, it's Melissa Murray here. Before we get to the rest of the show, I want to tell you about Amicus, Slate's weekly podcast about the U.S. Supreme Court that's hosted by our friends Dahlia Lithwick and Mark Joseph Stern. Their perspectives on the Supreme Court and indeed the fight for democracy is absolutely essential listening. This June, Amicus is in full

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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.

Welcome to a very special episode of Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. And we are coming to you live tonight from Sony Hall in New York City. This crowd had three choices tonight. They could have gone to Hamilton. They could have joined the Church of Scientology. Or they could have come here. And I'm just going to say, what was the right choice?

We're your hosts. I'm Alyssa Murray. I'm Kate Shaw. And I'm Leah Littman. So, as you know, we have a new strict scrutiny summer cocktail, the Big Baller.

We still can't tell you what's in it because state secrets, but it has been another fucking week. And since the Supreme Court has now signed off on Doge getting all of our information without turning over any of theirs, we've decided, I know, boo, we've decided to make these bad boys doubles.

So since the court is now on board with the big ball agenda, may it displease the court, let us introduce the bigger baller. And I just have to say, because we are shallow that way, we had a great live show in D.C. and we had an amazing, beautiful crowd in D.C. But I have to say, this New York City crowd is something. Yeah!

In fact, you all look so good and you're having so much fun that I think we might have to call in the Marines. Too soon. Too soon. The city is going to be filled with semen. That's S-E-A-men. The Marines are part of the Department of the Navy. Get your minds out of the gutter. This isn't the fucking Pentagon. I've already eaten the frosting off of three Magnolia cupcakes, so I am raring to go.

That is literally true and sugar is Leah's secret sauce so she is really just getting warmed up. But I'm going to get us back on track because that is my job. And here is what we have in store for you tonight. We are going to start off with the unfolding scene in Los Angeles where as of Thursday there are nearly 5,000 federal troops deployed in an American city.

We're going to talk generally about some of the legal questions raised by the president's domestic use of the military. This situation is rapidly unfolding, so it is likely that a lot of additional things will have happened before this episode airs on Monday and also possibly before we are even off this stage. But we're going to press on. After that, we will talk about some of the additional goings-on at SCOTUS, including the opinions that we got last week. And we're also going to be joined by a very special guest.

Friend of the pod and Supreme Court litigator extraordinaire, Chase Strangio is here in the house tonight. And after we break down this court with Chase, because it's a live show, we are going to play a little strict scrutiny game. And you know this is a podcast that runs the gamut from the Federalist Papers to Vanderpump Rules.

So that's what this game is going to do. So if you're a con law nerd or a pop culture nerd, this is your moment because everyone needs to get on this Pub Night Trivia. All right, let's dive in.

We are going to start off tonight with the Trump administration's extraordinary and extraordinarily dangerous decision to implement its mass deportation agenda in the great state of California. And in California, as we know, they have launched massive ICE raids, ICE raids that were allegedly orchestrated by Stephen Miller.

So after the massive large-scale ICE raids began around June 4th in LA, Angelenos began protesting. Most of the protests were peaceful, although a handful were not. Some driverless cars were vandalized, there was other scattered property damage, as we should say oftentimes happens at large mass protests, and never before did anyone think that a few protesters were so scary they required a full-scale military deployment.

Until now. Until the very scared administration of manly men, Donald Trump and Stephen Miller. I think they really need to take a look at Josh Hawley's manhood. The masculine virtues that America needs. Get your minds out of the gutter. Again, this is not the Pentagon. On Saturday, June 6th, President Trump signed an executive order that generally referenced, quote, incidents of violence and disorder, but denigrated

actually didn't say anything about LA specifically, which I think means New York, Philly, Chicago, and elsewhere, we are all on notice. So that executive order relied on a federal statute, 10 U.S.C. Section 12-406, that allows members of the National Guard to be, quote, called into federal service, that is federalized,

And the executive order said they would be used to, quote, temporarily protect ICE and other US government personnel who are performing federal functions. So after the executive order, the Secretary of Defense then implemented the directive by federalizing

around 4,000 members of the California National Guard and then sent in 700 Marines. So again, this is how we get to nearly 5,000 military personnel members in Los Angeles. As Leah said in our last show, Article 2, fascist to furious. That is where we are.

Or, as this fine denizen of Los Angeles said after being tear gassed: You told me you got caught up in the tear gas as well. Describe what happened to you. Oh, just tasted a little tear gas. Tasted like fascism. Just for context, the last time that the President of the United States deployed the National Guard to Los Angeles was in response to the 1992 Rodney King riots.

But importantly, in that case, California's governor Pete Wilson actually requested the presence of the National Guard. And in fact, that is typically how this works. In fact, the only times to our knowledge that the president has deployed the National Guard without first seeking the approval of a state's governor is when President Eisenhower deployed the Arkansas National Guard alongside federal troops to integrate Central High School in Little Rock.

and when President Lyndon Johnson sent troops to protect civil rights marchers in Selma, Alabama. So I think the real question that we have to ask here is how much time will it take for this administration to start claiming that what they are doing in Los Angeles is about protecting civil rights? - You are manifesting a true social post real hard right now. - It's inevitable. - Yeah, I know. - Okay.

So, both Eisenhower and LBJ relied, when they federalized the National Guard, on the Insurrection Act, right? This different statute to deploy troops to protect, again, ordinary people pursuing civil rights. Real civil rights. Real civil rights. The literal opposite scenario of today. So, according to California's complaint in the case that is now challenging the administration's actions in Los Angeles,

The only time that this statute that is currently being relied upon, 12406, by itself has ever been used to justify federal military force was when Richard Nixon used it to authorize the National Guard to help with mail delivery because of a major postal strike. Again, nothing like the present. But these guys do love Dick.

Nixon. So Section 12406. Okay, how many cupcakes did you have? Just three and just the frosting. So, you know, actually I did have some pudding as well, banana pudding, so extra sugar. Okay, but the Statute 12406 is usually the vehicle for federalizing the National Guard in service of the Insurrection Act.

Here the Trump administration has consciously decoupled them. At least for the moment, right? So we should pause to explain the relevance of the Insurrection Act. So there is another key federal law, the Posse Comitatus Act, which prohibits federal military forces from engaging in ordinary law enforcement, except under specific exceptions when authorized by Congress. And the Insurrection Act, which is really acts...

is one such exception. So when it is invoked, it allows the federal military to enforce existing federal laws. It is a very big deal to unleash the federal military to enforce federal law, which is what the Insurrection Act allows, right? Most military personnel are not trained to do this kind of civilian law enforcement. They aren't trained to deal with civil unrest or engage in de-escalation. They are trained to defeat an enemy.

So Kate's right, you know, Trump has employed the military to respond to political protests. But on the other hand, there are now no more black little mermaids. And you can use homophobic slurs and you can deny women health care. So who wouldn't take that deal? Right? Yes? Wrong. Oh. Okay. Anyways, without invoking the Insurrection Act, all

the military is supposed to do right now is to protect federal personnel like ICE officers as those federal officials themselves enforce federal law because the big manly men at ICE and DHS need some protection from the dancing Angelenos.

And again, for context, it's really important to note here that the last time someone tried to stop a throng of people joyfully dancing in order to advance a Christian theocratic agenda was in 1984 in Footloose. And that is obviously very different from the circumstances here, in large part because everyone in Footloose was actually hot.

Also, for some reason, the specter of a bunch of very insecure men calling up the military to feel big and strong reminds me of the scene in Arrested Development where Buster Bluth, wearing a stripper's army costume, is holding a bunch of Beanie Baby-like stuffed animals and says, "These are my medals, mother, from army."

And I pulled that clip when Leah mentioned it. He's like, he holds up a stuffed seal and says, the seal is for marksmanship and the gorilla is for sand racing. But, you know, more seriously back to what these guard members are supposed to be doing, it is obviously very difficult to police the line between enforcing the law and protecting the personnel who are enforcing the law, right? And along these lines, some reporting has already suggested that some federal military officials may be helping ICE carry out arrests and detaining some people until ICE arrives to make arrests.

So we may be inching much closer to the invocation of the Insurrection Act and actual law enforcement than has officially even occurred. But those aren't arrests arrests. They're just like a vibe.

So it's fine. Arrest-ish. Arrest-adjacent. Right. But I mean, that obviously does, it reveals the way that federalizing the National Guard and deploying the military is allowing Trump to push the boundaries of authority, edging closer to invoking the act, and again, having the military enforce federal law in an American city.

We should note at this point that California is not taking this lying down. And in fact, California's governor... Yes, let's give it up for California. California's governor, Gavin Newsom, we call him Gavin with the good hair and the bad podcasts. Uh...

They're bad guests. I actually don't know. Is it a bad podcast? Yes. Or just bad guests? Okay, all right. Yes, a bad podcast. I think we all know the guests make the podcast. That is true. So Gavin Newsom, Gavin with the good hair, has filed a lawsuit challenging the lawfulness of the administration's actions.

And specifically, California is arguing that Section 12046 specifies that when the president calls members of the State National Guard into federal service, those orders, quote, "shall be issued through the governors of the states." And California argues that that means that the statute contemplates some kind of consultation between the president of the United States and the governor of the implicated state in question.

That's because of reading, right? And textualism. And that is something that, according to California, did not happen here. So on Wednesday, June 11th, the Department of Justice filed its response and predictably they fucked it up. So the table of contents just said "table of contents." There was no actual content described.

This seems like a metaphor. And the table of authorities, which is lawyers speak for a bibliography of laws and cases that support your argument, basically just said "table of authorities." They didn't list any supporting sources, no actual authority supporting them. Also quite Freudian. It was mortifying for them, which of course made it awesome for us.

They did include some actual pages of written argument, which claimed in essence that Section 12406 is, quote, through the governor language, just means the president has to use the governor like as a pass-through, right? Like a message conveyor. Or an ETM.

Yeah, that works too. But essentially, right, the statute doesn't require any substantive assent or approval, right? Like you put your request in, the National Guard comes out, no substantive role for you. So that's a theory. An ATM, a rubber stamp, because...

federalism, right? Yeah. So they're saying the statute doesn't actually contemplate the governor's involvement, even though it literally says, quote, shall be issued through the governors of the state, end quote. They

They are foregoing textualism for texting or maybe accidentally adding "Gavin with the good hair" to their signal chats. Once again, Pamela Jo Bondi's DOJ is showing us that reading is what? Not fundamental. They can't read. So, yeah.

So a hearing on this question was actually held on Thursday, June 12th, in the Northern District of California before District Judge Charles Breyer. That is the other Breyer. Judge Breyer is the younger brother of retired Supreme Court Justice Stephen Breyer. You didn't know that? I know. So we are...

We are quite possibly expecting a ruling maybe during this live show, more likely right after because Article III loves to fuck with the pod. Based on reporting, it does seem like Judge Breyer may rule that the administration's federalization of the National Guard was illegal. So at one point during the hearing, he remarked, quote,

That's the difference between a constitutional government and King George. It's not just that the president can say something and anything goes, end quote. It's like he knew we were recording this episode live from a venue across the street from Hamilton. We see you. We see you, Judge Breyer. Yeah, yeah.

So, DOJ's argument is that the President has the constitutional authority to federalize the military, which would mean he doesn't even need Congress's permission to do so. They also maintain courts owe complete deference to the President's determination to call up the guard. So Judge Breyer summarized DOJ's position this way, quote, "If the President says that there is a rebellion, then there is a rebellion," end quote.

even if the rebellion is more of a vibe. But Judge Breyer continued, quote, "How is that different from what a monarch is?" Totally reminds me of... ♪ I will send a fully armed battalion to remind you of my love ♪ This is Melissa's Broadway debut and she is making the most of it. As Jonathan Gough said, as King George said, "I'll be back and you'll be sorry."

Judge Breyer is asking the real questions here. What is the difference between a president deploying the military troops to affect law enforcement in a domestic context and a monarch doing the same thing? That is the essential question and

waiting with bated breath for his answer. Yeah, and I think we are likely to get a ruling again as Leah said today. He suggested he was likely to try to get it done today, so potentially tonight. And the prospect of a ruling potentially against the administration makes all the more relevant some statements by one Secretary of Defense, Pete Hegseth, which is a phrase we still cannot believe we have to say.

but we do, at a hearing in the Senate on Wednesday. So Hegseth, who in the immortal words of Melissa Murray, is the Brett Kavanaugh of Dan Bongino's. Okay, I actually, no, no. Oh, sorry, did I misquote you? You're not going to throw me under the bus again like you did at the Senate, like where you were like. I did not say that. I did not say the Senate. I said that Brett Kavanaugh was the Dan Bongino of Pete Hegseth's.

That's right. That's true. That's true. I've garbled it. That's what I said. Okay, well, so if Kennedy asked me that question, I'm going to be sure to get it right next time. Get it right. But this aforementioned Pete Hegseth, in response to a substantive question, declined to say whether the administration would obey court orders telling the federal military to stand down. He basically just deflected.

He stated, quote, what I can say is we should not have local judges determining foreign policy or national security policy for the country, right? Which was alarming on Wednesday and in light of the possibility of an actual vote

ruling materializing is all the more alarming. So let's maybe do a lightning round on some assorted thoughts. Yeah. How bad is this? Well, so I think this feels like the administration relitigating and reliving what they wanted to do with the BLM protesters in the summer of 2020, unleash violence and military force against the Black Lives Matter protesters.

and they are also trying to normalize these emergencies quote emergencies that warrant assertions of extraordinary power you know apparently la slash california slash the entire country is in rebellion or on the precipice of one which purportedly requires military presence our trade deficits are an emergency requiring unprecedented tariffs the fentanyl situation is too the presence of students in the united states is a grave and dangerous threat to united states foreign policy so they have to be

Because of all the reading. All the reading. And then we, the United States, are under some kind of invasion by Trende Aragua, which requires us to say, like, adieu process. But the Hegseth statement is illuminating because when he says it's not for judges to determine national security policy for the country, they are framing everything as national security policy.

So they are arguing everything they are doing is above the law and not subject to checks. And little wannabe fascist tyrants everywhere are trying to do the same thing. So the Missouri governor declared an emergency to mobilize a state guard in response to possible protests. And this is how it happens.

I'm just going to say none of this is surprising. If you're surprised, then you just tuned into this pod because we've been saying this for forever. In Trump 1.0, the Brennan Center's Liza Gotian basically had a cottage industry in basically studying all of the different emergency statutes that could authorize the president to act and to do these sorts of things without any kind of legal checks. And the only thing that really surprises me right now is

how it took them this long to get to this point, right? I mean, it's June. I expected them to do this in February. So I guess that's restraint, like conservative values. Good, I guess.

want to give a shout out. The California Attorney General's comms office is doing an absolutely amazing job. So California released a press release about its lawsuit against the Trump administration over this issue and it had a great explainer on California's arguments explaining everything that California was putting forth at the court but then it had this CVS style receipt where

The section is titled, What They Were Saying, which is like, just read that in your Joan Collins voice, what they were saying. And they literally have clips and tweets of people like former South Dakota governor, Kristi Noem, saying things like...

South Dakota would never do anything to violate states' rights and sending in the National Guard without the assent of South Dakota's governor, her, would violate states' rights.

Very, very interesting. But South Dakota and California are fundamentally different, Melissa. That's what you're failing to grasp. Well, it's also only Democratic presidents need to seek consent from Republican governors, but the opposite isn't true. Yes, that's the principle. Article 2. Yes, that's right. It's true. So, as we

As we record this episode, we're sort of on the precipice of a pretty surreal split frame that we're expecting on Saturday. So first we have Trump's military parade slash birthday party. Boo. Yes. Rudely, that is also Melody's birthday. Melody wants you to know. Yes. You can cheer for that. Not for Trump, but for Melody.

Melody wants you to know if you're looking to celebrate either her birthday or Trump's, you can donate to the Missouri Abortion Fund. But I'm not wishing this on Melody's birthday, but as of Thursday, there were rumblings that thunderstorms might end up requiring the cancellation of the birthday parade, which, I mean...

Let the heavens open! Like possible divine intervention. But we also have scheduled, in terms of this split frame, the No Kings protest planned all over the country on Saturday.

The last big round of nationwide protests, the hands-off protests in early April were actually pretty remarkable, including in very small towns, in very red states, and big cities like New York. And Trump has said some pretty ominous things about this convergence. So let's roll that tape.

We're going to be celebrating big on Saturday. We're going to have a lot of, and if there's any protest that wants to come out, they will be met with very big force. By the way, for those people that want to protest, they're going to be met with very big force. And I haven't even heard about a protest, but you know, this is people that hate our country, but they will be met with very heavy force.

Very heavy force, if you missed it. That's just locker room talk. It's just the way boys talk. You know, it also reflects a very well-known exception to the First Amendment for emotionally needy, insecure men who need to throw themselves military parades. Yes, yeah. The First Amendment also notably does not apply on June 14th, which is Flag Day, since that is the Alito's favorite holiday. And also...

Also, their least favorite amendment, at least when it's being exercised by people who aren't Republican. I'd forgotten about that. Melissa! Virgonia! Virgonia on you! So much has happened. Never forget the freak flags flying. All right, that is truly Martha Anna Ray Sherwood. Okay, so...

Just because the heavens are going to open doesn't mean some people aren't going to let their freak flags fly. Some Trump officials have already started celebrating the president's birthday a little bit early. So on Thursday, Secretary of Homeland Security Crispy Noem held a press conference and she described the occupation slash invasion's mission in the following terms.

We are not going away. We are staying here to liberate the city from the socialist and the burdensome leadership that this governor and that this mayor have placed on this country and what they have tried to insert into this city. They are liberating L.A. the same way Vladimir Putin is liberating Ukraine. Like,

She just comes out and says they are subjecting a major city to military occupation for politics because they disagree with the city and governor's politics. And unsurprisingly, California's elected leaders, including California Senator Alex Padilla,

had some questions, which he tried to ask the secretary at the presser. And this was such a grave offense that the administration manhandled the senator and forced him out of the room. He was thrown to the ground and put in handcuffs.

These goons assaulted a duly elected senator. They are lerping a military dictatorship because free speech is so free they are trying to free themselves of having to answer for their occupation of California. Like, they are trying to make it a crime to oppose Dear Leader and his policies.

It is nakedly authoritarian conduct. And thus far, their defense seems basically to be that Senator Padilla was asking for it, that he hadn't identified himself as a senator. As if first that would make the assault okay if he was, say, a journalist asking the question. But also, there is video in which Padilla very clearly identifies himself as a senator. I don't think there's any question that they were on notice that he is a senator.

And along these lines, we should note they are not just detaining, handcuffing, and throwing to the ground opposition politicians. Representative LaMonica McIver was indicted on three charges related to her exercise of her constitutional oversight authority and the resulting clashes outside of an ICE detention center in Newark, Pennsylvania.

New Jersey, none of this is normal. Arresting and charging opposition political leaders for speech and oversight is authoritarian conduct, full stop.

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Okay, next up...

We would like to briefly cover some of the developments involving Kilmar Abrego Garcia and the ongoing litigation about the scope and substance of the Alien Enemies Act. Now, listeners, you may recall that midway through recording our last episode, ABC News broke the story that Abrego Garcia was on a plane bound for the United States where he was going to be charged with various offenses related to the transporting of undocumented migrants. And...

We were processing that in real time, and as we noted in that last episode, it was a very big deal that Abrego Garcia was returned to the United States.

I think that our view is that Rego Garcia's case has been an enormous stress test for courts and for the rule of law, right? Like the news cycle can move really fast and it doesn't help that there is an ever fresh supply of executive branch conduct that is genuinely shocking and appalling. But in this case, I really think that a concerted effort to maintain public attention on his case and pressure on the administration matters.

So recall, administration officials, including DHS Secretary Noem, Attorney General Pamela Joe Bondi, insisted that he would not ever return to the United States.

Braco Garcia is a citizen of El Salvador and should never have been in this country and will not be coming back to this country. There is no scenario where Braco Garcia will be in the United States again. If he were to come back, we would immediately deport him again because he is a terrorist, he's a human smuggler, and he is a wife beater. He is not coming back to our country

President Bukele said he was not sending him back. That's the end of the story. If he wanted to send him back, we would give him a plane ride back. There was no situation ever where he was going to stay in this country. None. None. He would have come back, had one extra step of paperwork, and gone back again. But he's from El Salvador, he's in El Salvador, and that's where the president plans on keeping him. So shouty. She should try smiling more.

But despite the shouts, the unsmiling shouts, he returned, right? And an important takeaway here is pressure works. And not just pressure from the public, although I think the fact that so many people were engaged with the story, but

I have been railing about this thing we call a Congress, so I'm just going to give credit where credit is due. I think it was really meaningful here that the Maryland congressional delegation took themselves to El Salvador, and I think it really made a difference. And so, again, Congress, more of this. And if you don't want to go to El Salvador, you can just show up to Senate Judiciary Committee hearings on Trump nominees and ask them questions, and that would be good, too. Thank you.

Speaking of showing up, we are a Supreme Court podcast, so let's get to that business. I've forgotten about them, too. We would all like to, but regrettably, we can't. So, okay, first, a week ago, the Supreme Court actually issued its... It had its weird glitch. It issued its Monday orders list three days early, which is last Friday, blaming an apparent software malfunction that caused email notifications to go out early, which...

didn't instill a ton of confidence in how things are going over there. Remember that time when there was a leak of an opinion back in 2022 and the Chief Justice says, we are conducting a technology audit. So, you know, I think they did. They did do that audit. It was just that the audit was a reenactment of that scene from Zoolander where they're bashing the computers. Only here it's Brett Kavanaugh grunting like a monkey hopping around with a computer.

With Neil Gorsuch by his side. Anyways, so we got some opinions from the court, but none of the big ones. We got six opinions on Thursday, four unanimous, two with Gorsuch dissents, though some significant concurrences. I think we'll just do two of them, though.

Yeah. Yeah, right. So let's start with AJT versus ASEO Area School Districts, a case about what legal standard courts should use when reviewing a challenge to a school's failure to offer reasonable accommodations to students with disabilities. And in particular, when the challenge is brought under a statute, the Americans with Disabilities Act, or ADA, and Section 504 of another statute, the Rehab Act.

This is actually an open question because typically challenges to schools failures to provide reasonable accommodations proceed under another federal statute the IDEA rather than the ADA or the Rehab Act. So the court granted cert in this case to decide whether a uniquely demanding standard should apply in the context of ADA and Rehab Act claims that involve students. So let me put this differently.

The standard would require students claiming a failure to accommodate their disability to show first that the school acted with bad faith or gross misjudgment rather than just some deliberate indifference to the accommodation. So a much higher standard for the students to make.

And listeners, you'll recall that the way the petitioners framed the question presented really triggered counsel for the respondent, longtime Supreme Court advocate Lisa Blatt, who was defending the decision below in the school district. As she stressed at oral argument, she did not think the courts or her client were abdicating a standard unique to the educational context, and she maintained that anyone who suggested otherwise was a big fat liar, leading to these exchanges.

What the school district has said, which is what Monaghan said, is it... You believe that Mr. Martinez and the Solicitor General are lying? Is that your argument? Yes, absolutely. It is not true that we... I think you should be more careful with your words, Ms. Platt. Okay, well, they should be more careful in mischaracterizing a position. Ms. Platt? Yeah. I confess I'm still troubled by your suggestion that your friends on the other side have lied. Okay, let's pull it up. Yeah, I think we're going to have to here.

And I'd ask you to reconsider that phrase. An oral argument was incorrect. Incorrect is fine. People make mistakes. You can accuse people of being incorrect, but lying is another matter. One could interpret those perhaps different ways, but surely a reasonable person could interpret them as arguing for a special rule in the educational context, correct? Correct.

No, only because of the text. Ms. Blatt. Okay, well, you and I mean... A reasonable person. All of those emphasize the unique context of primary and secondary education and the need for a special rule, don't they? Fine, but what I'm objecting to... Fine, fine. Then would you withdraw your accusation? I'll withdraw it. Thank you. That's it. Okay, why does she have me rooting for Neil Gorsuch? Okay.

I just wanna say, if at any point in our interactions with each other I say to you, "Okay, that's fine," please understand that it is actually not fine at all. And I am gonna go back to my desk and I'm gonna take out my Arya Stark burn book and I'm gonna write your name in it.

It's not fine at all. No one wants that. No. So, okay, in this case, in an opinion by the Chief Justice, the Supreme Court unanimously rejected Blatt's position, the idea that students had to show bad faith or gross misjudgment in bringing accommodation claims under the ADA and the Rehab Act. It's a position she said she wasn't taking at the oral argument, but it was a 9-0 ruling against her client. And that's the good news.

But... But, okay, now is the time in the show where we have to have our reoccurring segment. We need to talk about Justice Thomas' concurrence. Okay? All right.

Why are you clapping? Why are people clapping for that? These are never good. This is never a good segment. So we are workshopping. We have the Cav currents for Justice Kavanaugh. So we're workshopping some names for the Justice Thomas concurrences. So there is the Clarence currents, a little wobbly. A Claire currents, possibility. The Con Clarence, possibility too.

I think you all are thinking of other things. Okay, but we're workshopping it and our DMs are open to your suggestions, so please send those in. Anyway, back to our originally scheduled programming. Justice Thomas suggested in this concurrence that the court had not, quote, resolved what all plaintiffs are actually required to show under the ADA and Rehab Act. And I think we should take that as...

invitation for more litigation. Also he just threw out that like by the way the spending clause might be unconstitutional. No really like he suggests there is a constitutional problem with the way courts are applying Title II of the ADA. And as is typical in I think I like ConClarance I think that's my pick for now. But um we got some applause I think others also like that one. You get two applause. Okay okay that's all right.

More than two, Melissa. Thank you. He would have gone further, of course, than the majority. So he explained, quote, the district contends that Title II, which targets state and local governments, cannot be read to compel states to expend state funds to accommodate people with disabilities in accordance with federal standards. Seems like maybe a pretty scary invitation to reconsider the ADA more generally. And this was especially alarming because it was not a typical solo event.

I guess I'll try another one. I still like Con Clarence better. Con Clarence so much. But he was joined, so it wasn't just him. He was joined by the court's other great concurrer, Justice Kavanaugh, the author of many riveting CavCurrences. Good, yes. Boo his. Okay. We call them CavCurrences. They could also be BuzzFeed listicles. Yeah.

But these two nasty boys say that the ADA might violate the spending clause because the courts are not requiring plaintiffs to show intentional discrimination, to prevail on their ADA claims. But requiring plaintiffs to show intentional discrimination under Title II of the ADA would eviscerate reasonable accommodation claims.

And Justice Sotomayor, who was joined in her concurrence by Justice Jackson, explained why the Nasty Boys are dead wrong about this. Hat tip to Elena Kagan. As Justice Sotomayor wrote, quote, "Persons with disabilities can, of course, lose access to benefits and services by reason of or because of their disabilities absent any invidious animus or purpose. Stares may prevent a wheelchair-bound person from accessing a public place.

Exactly. This is not hard, right? There are lots of ways in which people don't intend to discriminate, but the practicalities is that some people will be excluded from a space. So why are you trying to change this to require intentional discrimination unless

You actually want to undermine the prospect of civil rights lit... Oh. No, no, no, no, no. It's because civil rights, because they're enforcing civil rights. Right. Yeah, yeah, yeah, yeah. Of the people building stairs. Yes, exactly. Yes. Justice for stair builders. Yes. Exactly. Yeah. Okay.

Kavanaugh could get behind that. Oh, yeah. He wants to build. He is a builder. That's right. Okay, so the other case we're going to talk about is Martin v. United States, a case about whether and how you can sue federal officials when, as here, an FBI SWAT team mistakenly raids your house and roughs you up and destroys your property because a GPS device took them to the wrong house on the wrong street, not even the same number as the right house on a different street.

All of the particulars are a little murky because the official threw away the allegedly malfunctioning Personal GPS device as you do, but that's basically what happened. Yeah, so the law here is super complex So the first thing to know is the background principle that the government is generally immune from suit That's called sovereign immunity and it's kind of sketchy, but that's for another day a federal law that

called the Federal Tort Claims Act or the FTCA waives the government's immunity so you can sue the government in certain circumstances, but that law also contains a lot of exceptions, meaning circumstances where the government continues to be immune. However, those exceptions also have exceptions, including a proviso that removes that preserved immunity in circumstances involving law enforcement officials.

Got it? It's fine. Neither do any of the Supreme Court justices or at least the boys. So, yeah. Basically, everyone in this room is prepared to decide this case right now. Yeah.

The particular provision that's at issue here is the law enforcement proviso that allows the government to be sued in circumstances involving certain kinds of law enforcement officials. And the court, in an opinion authored by Justice Gorsuch, clarified that the law enforcement proviso only overrides the government's sovereign immunity in cases of intentional torts, which is one of the statute's exceptions that allows the government to retain its immunity. If you're confused now, so are they.

The law enforcement proviso, however, does not override any of the other exceptions. So there's that. So to translate a little bit, the reasoning so far actually kind of restricts plaintiffs' ability to proceed in these suits against the government, but the court also held that...

that the United States does not have a free floating supremacy clause defense that allows the federal government to prevail whenever officers can plausibly claim they were pursuing a federal policy. And that's something the 11th Circuit had found below. So here the court reversed the 11th Circuit, but left to that court the application of this new opinion and a Sotomayor and Jackson concurrence made clear that they definitely think these claims should be allowed to proceed. And I think they have a better chance of proceeding now, but that all remains to be seen below.

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All right. One of the best things about live shows is that we get to be joined by our friends. And the guests make the podcast, in the words of Melissa Murray. So we get to be joined by our friends in real life. It is actually quite rare that even the three of us get to be in the same place in real life. And it is even more rare that we get to hang out with one of our BFFs of the pod. New York. That's quite a windup from Kate, but I think you know what's going to happen now.

We're going to be joined by, again, a friend of the pod and a friend of civil rights more generally. Please... Real civil rights. Real civil rights. Please join us in welcoming to the stage the extraordinary Chase Strangio. If you're unfamiliar with Chase, then you've been listening to Gavin Newsom's podcast and...

We know. But for those of you who are longtime listeners, I know I don't need to say this, but I will say it anyway. Chase is the Deputy Director for Transgender Justice and a staff attorney with the American Civil Liberties Union. And he also argued on behalf of parents of trans minors in the recent case, probably the blockbuster case of the term United States versus Scermetti. So Chase, welcome back. We are so glad to have you. Thank you.

Thank you. I was really glad that there was a visual of how to hold a microphone back there. So that was... They were like, don't eat it. Yeah, don't eat it. You're doing great. Don't eat it. But now I'm almost self-conscious about it. Like, could it get too close? Like, yeah. But yeah, I got it. Okay, we're ready.

Okay, so there is so much happening. We wanted to talk to you about some of the dynamics we've observed in the political and legal conversations over trans rights and one thing, you know, we have noticed is the recent hesitation or unwillingness or

defend trans rights in certain corners, which maybe is related to some efforts to blame the results of the 2024 election on trans people. I guess, Trace, like what do you make or like is there a retrenchment and is this, you know, part of the process of social movements, progress, pushback, retrenchment moving forward or what are we seeing? Have you two been listening to Gavin Newsom's podcast? I don't even

I don't even hate listen to that thing, but I've seen clips on social media. Well, so I like that orientation that this is part of the process that we will sort of inevitably move forward. And I like to believe that that's true. I think if that is the cycle, we are in the retrenchment. It's impossible to suggest otherwise. And for trans people in particular, it's a catastrophic retrenchment because we are being positioned as the

fall guys, so to speak, for everything in just the classic scapegoating where a group of people that represents less than 1% of the population is being blamed for societal problems and sort of endemic challenges. And all of a sudden, it's trans people's fault. Yeah, right. Like because a trans woman competed in swimming, the price of eggs went up, right? That's how the economy works. And now it's like darts. Right, yes. Yeah, great. Yeah.

Let's talk about the Scrimetti case in particular. There's been a lot of sort of, I guess, Monday morning quarterbacking on this about why the case was brought, should the case have been brought. What do you make of both critics outside of the movement and within progressive circles who are fly-specking or questioning the strategies around how rights advances are made or brought to the courts? Yeah, I mean, this is something that is...

it's so difficult to comprehend in a certain way because if you think about the healthcare bans for trans adolescents, these started in 2021, very recently.

This is medical care that people were receiving with the consent of their parents, the recommendation of their doctors for decades in the United States. They were relying on this care. And then you go from zero states banning this care to half the country banning the care in a period of three years. And families are in absolute catastrophic circumstances. Kids are losing their health care. When the ACLU filed the first case in 2021, everyone thought this is a winning case.

"The governor of Arkansas vetoed the bill. "Aysa Hutchinson said this is vast government overreach." - Liberal squish, noted liberal squish. - Yeah, I mean, Asa Hutchinson loves trans people, as we all know. And he too thought this was a bridge too far, and that was the context in which we brought these cases into federal court.

Republican governors vetoing the laws, kids losing health care, overriding the decisions of parents in the middle of the pandemic when the states that were passing these laws were also like, oh, by the way, you can definitely try ivermectin even though we know it doesn't work. And

And so that was-- And bleach. And bleach. Yeah. And we have to be able to not send our kids to school in masks because of parental rights. And so there was this robust discourse of parental rights. These were states that the Republican governors even thought they were going too far. And there was such a catastrophic harm. And so everyone was in support of bringing these cases into federal court. And when you bring a series of civil rights cases into federal court and a circuit split emerges, you cannot

control whether the Supreme Court is going to hear a case concerning your civil rights. And I think this is really important. The other thing is there's all sorts of people saying, well, you should have gone to state court, which, first of all,

Yes, maybe we could have gone to state court in Alabama and it would have been incredibly unsuccessful. And also, state Supreme Court decisions are also reviewed by the Supreme Court. And so you cannot say that, in essence what people are saying is trans people should have waited and died and then you can, in a few generations, if there's any of you left, vindicate your civil rights.

Yeah. And I guess like part of the context for bringing these cases at that time is also this is also happening in the wake of Dobbs when state referenda right that are protecting individuals access to health care and individual civil rights are succeeding. So it's within the context of that movement as well.

And so that's like, it's amazing that we're only talking about four years ago and the dynamics have so radically changed. So maybe I'll ask a two-part question. One is, you know, how are you thinking right now about kind of courts in this moment? Not just the litigation, much of which has been ongoing for some time, but new challenges if they need to be brought. And again, we don't want to ask...

you too much about a case that is currently pending, but if you want to talk with any more specificity about Scrametti itself and the dynamics around bringing that case when you did, we would love to hear those. Yeah, I mean, I think for

I mean, how do I think of courts? In some sense, I think of courts the way that I've always thought of courts, which is this is a limited harm reduction tool that we have to keep utilizing because we can get temporary relief in contexts where the harms are so great that even the temporary relief is transformative.

And so to me, it's always a harm reduction. We're not getting liberation through the courts. And there's lots of reasons to be concerned. But we are bringing cases in state and federal court every single day at the ACLU. And we will continue to do so. So that's, I would say, you know, point one. Thank you.

And then, you know, with Scrametti, I guess I would just say two things. And again, coming back to the harm, like, I have been working on trans litigation for 15 years. I've been working on behalf of LGBTQ people for over 20 years. And...

I've never felt so devastated and despairing as I did between 2021 and 2023 watching people lose access to their lifeline. And, you know, it just felt like we were going to fight as much as we had to fight.

And the Sixth Circuit decision that we sought cert from was so terrible and so intellectually dishonest and so harmful, not just for the Sixth Circuit, but for the three other circuits that followed it and for the people whose lives were impacted by it.

And so we fight to get a less bad or good decision. You never know. And so I think that's what it feels like with respect to Scrimeti. But I'm thinking it's June in 1986,

the Supreme Court upheld criminal bans on sodomy for same-sex couples. And that was seen as, obviously, catastrophic for LGBT movement work, for gay people generally. And it's not like the movement was like, oh, well, we lost, we're going to give up. Whatever happens, we're not going to give up. We're going to keep fighting. And they overturned Bauer 17 years later in Lawrence. So, yeah. So...

I wanted to say something else about the decision that the Supreme Court is reviewing in Scermetti because when you talk about how catastrophic it was and bankrupt it was, one of the remarkable things about that opinion is

The court, in explaining why laws that targeted trans people don't trigger heightened scrutiny, focused on this weird idea that actually trans people are not minorities in need of judicial protection, but the real people, right, who were subject to attack were somehow political officials who were attacking trans

Trans kids? Because the court noted, look, look at all the briefs in this case. Who are nonprofit organizations and medical organizations supporting? The trans kids, not the state.

as if that somehow proved that trans people didn't need the protection of the state because reasons and when the reality is like those briefs just underscored that there is no case for these healthcare bans, right? Like that's why the medical organizations are supporting the plaintiffs. Yeah, I mean, I will say I remember that- I just wrote the opinion for you, Chief. Just FYI. I mean, it's-

done. In the appeal of the first preliminary injunction in the Arkansas case, the Attorney General's office got up before the 8th Circuit and the first point they argued was that trans people have a huge amount of political power. The other side is really obsessed with zeroing in on it. Couldn't you have done something about the 2024 election then? Yeah. No, no. I,

I thought Justice Sotomayor addressed this very effectively in oral arguments, noting that this is not a situation where this group, which is about 1% of the population, is going to be able to harness the political process to affect the kinds of returns that they want. And I also note...

This whole question of who exercises political power is not an idle question. This goes to the very heart of what it means to be classified as a minority for purposes of equal protection. So if you look at the Dobbs opinion, Justice Alito talks about how women are not lacking electoral and political power. That's not...

you know, get yourself to the ballot box, ladies. It's get yourself to the ballot box so we can later talk about how you don't need to be considered minorities for purposes of the Equal Protection Clause. So again, doomsday Cassandra here, raving harpy, but it's going to happen.

Correct? Correct. Yes. I mean, I do think that this series of exchanges at oral argument in Scrimeti sort of foreshadow all of the ways in which Supreme Court precedent is under attack more broadly. And there's obviously this idea of, well, let's get rid of heightened scrutiny altogether. This is the demise of equalization.

protection as we know it. Yeah and then this idea too that we can just on the front end say you know what biological differences then we you know we don't need to worry about it but as if the invocation of biological differences wasn't the very thing used to subjugate women forever and they're like well no biology QED we win. So can I say You have boobs you can't have a job. Right yeah certainly not as a bartender. Right.

Can I ask a different question? And again, we need to talk about Justice Thomas's concurrence. This one was in Dobbs where Justice Thomas was like, while we're getting rid of abortion, there's a bunch of other decisions that I would like to reconsider, including Obergefell versus Hodges, the 2015 decision that legalized same-sex marriage.

Last week, delegates at the national meeting for Southern Baptist, which is the largest Protestant denomination in the country, endorsed a ban on same-sex marriage, including a call to ask the Supreme Court to overturn Obergefell. How does that development fit into the broader effort to shore up civil rights at a time when it seems the entire civil rights settlement is under threat from this administration and those who support it?

Yeah, I mean, this was an obvious development. And just shout out, it's the 10-year anniversary of Obergefell in 20... So let's talk about the good thing. And... But I think, too, we just... It should be a wake-up call to us that we have to stop being complacent. Because this was always the play. They never gave up the game on marriage equality. It was very clear. And actually...

What's so frustrating about all of the calls from, I don't know, our so-called friends about why did you pick this fight about trans people in bathrooms? Guess how that fight started. It started the day after Obergefell was decided as an effort to say, we're not giving up on marriage equality. We're going to undermine your equality efforts. And every single time you introduce a non-discrimination measure, we're going to talk about trans people in bathrooms.

And all of that work is being done to erode all of these equality norms for everyone, but also for cisgender gay people. And so this effort to divide us, this effort to act like, you know, if you just drop trans people, don't worry, your marriages will be safe, is patently absurd, and people should know that, and we can't be complacent, and we have to mobilize together.

I actually wanted to ask about another case that we discussed last week, this literally straight rights case, Ames, in which our take was that actually the court made it easier for straight plaintiffs to allege sexual orientation discrimination.

But we thought there was a silver lining in the case, and we're curious to get your take on it. And that silver lining was that the case does cite Bostock, right, which holds that discrimination on the basis of sexual orientation or gender identity is sex discrimination under Title VII. And Sam Alito joined that opinion, and he did not spontaneously combust. And that at least is...

we thought of a positive sign. Did you read it the same way? I definitely did, and I think I was really expecting at least a concurrence, being like, I am going to at least continue to bodge my hatred of Bostock. And it relies very heavily on some of the sort of critical parts of Bostock that we continue to rely on in our litigation, including in Scrimeti, which obviously isn't a statutory case, but this idea about the protection flowing to the individual, that was central to how Bostock

was litigated, and so having nine members of the court agree with that and cite to Bostock repeatedly, it makes it a lot harder to then overturn Bostock.

I also kept wondering, like, did they just forget to append the, like, Alito nasty gram that was going to end? If they did, they just decided. Tactical malfunction. Yeah, exactly. But it really matters that he just held his fire for whatever reason. And now that is a unanimous statement from the court. Yeah. Do you know why he held his fire? I was like, well, I hope it's not something to do with a bargain in Scrimetti. But I guess we'll see.

Well, on that bright note, Chase, thank you so much for joining us. We really appreciate it.

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All right, I've prepared myself mentally. We're moving on to the game segment. And we really do love doing live shows, and it is great to be in person with all of you. And so, as an expression of our appreciation and love, and also to lighten up this dark timeline somewhat, we thought we would have a little fun with some games. Okay, you totally made that sound like we're having a key party. Okay, that was, like, very... Don't get excited. We're not. So, we might have to interrupt the game. Oh, no. Judge...

Breyer decided he wanted to participate in said podcast. Okay. We have a cameo from Judge Breyer. We have a cameo from Judge Breyer who has ruled that President Trump's use of the National Guard in L.A. was indeed unlawful. What?

Kate, Judge Breyer knows how scared you are of pop culture. And he came to your rescue. I don't mean to be the fly in the punch bowl, but this is clearly going up on appeal. And I think Donald Trump right now is thinking, you'll be back like before. It's my moment.

You deserve it all. Okay. It's not just going to be Ketanji Brown Jackson on Broadway. Normalize black women on Broadway. So, the audience for a live show, you get to see us try to process something in real time.

I brought my phone up here just in case this happened. Okay, so Kate, do you want to opine on some pop culture while I quickly skim this so I can say something?

Should we proceed with the game? So you're actually going to read? How long is the opinion? It's 36 pages. Yeah, this is literally how we do it. All right. She has an actual factual speed reader. I'm already on page nine. And she's been talking the whole time. This is literally how Leah Lippman rolls. Yeah. So if you guys could amuse the audience for like a few minutes, I'll be back. Is this my moment? I think it is. Okay.

Let's talk about the game. Should we talk about the game? We'll set the game up. This is going to be a little surreal. We're going to set up a game about epic breakups. It's a breakups game. So here's the setup. We are going into summer. And usually this is the time for a summer romance, a summer fling, something fun, flirty. It's not intended to last until September, like Danny and Sandy in Greece. Summer lovin', if you will.

But sometimes a summer romance ends a little early. And this summer, we have been plagued with some epic breakups that I think we really need to talk about on the pod, right? The girls have been fighting, right?

The game is called Breakup Bracket. Okay? All right. Here's how the game works. We're going to give you some content about some pretty iconic breakups, but we're not just going to tell you about them. We're going to pit these breakups against each other, okay, for the title of most iconic breakup. So we're gonna have two separate breakups.

And we are each going to make the case for why that breakup should be considered the most iconic. And then, of course, we will involve you as the trier of fact, if you will. And you will help us determine which breakup was the most epic. And we're just going to go through a bunch of truly iconic breakups until we get to the most iconic. Until Leah finishes the opinion.

Until Leo finishes the opinion. And then we'll talk about Breyer and then we'll come back and finish the game. When we break up with democracy. That's right. Or break up with fascism for a minute. This is going to the court, so I'm just anticipating. Okay. First bracket. Melissa is going to argue the Donald Trump-Leonard Leo breakup. And I will argue the Brett Kavanaugh-John Roberts breakup. Okay. Let us begin. Okay.

Many of you are already briefed on the particulars of the Trump-Leo breakup, but to summarize...

A few weeks ago, after a three-judge panel of the Court of International Claims, which included a Trump-appointed judge, ruled against the president on his tariffs, the president, as is his wont, took to Truth Social to call Leonard Leo, quote, a sleazebag and a bad person who, in his own way, probably hates America.

Leo is, of course, the mastermind behind the Federalist Society's meteoric rise, and he was instrumental in stalking the federal judiciary with conservative judges during the first Trump administration. Here is my case. I mean, I could just stop now, but I will say...

This is obviously the more iconic breakup in this bracket because the GOP really only loves three things, right? They love tax cuts. They love judges. They love a pre-1954 America. And this breakup basically cuts out two of those things. I'm going to let you guess which one sticks around.

So this Leo Trump bromance has given us Neil, Brett, Amy on the Supreme Court. Pretty sizable. It has also given us Jim, Andy, Kyle, Lawrence, and Justin. And no, that is not a struggly 2000s boy band like 98 Degrees. I know, you will not stand for this Nick Lachey erasure.

These are the names of Trump-appointed circuit judges, and these are the same judges who basically stay auditioning for the post of America's next top justice. So the fact that Donald Trump and Leonard Leo are no longer together, I think is pretty epic. Do you agree?

I feel like that's always a hard act to follow. I will say, just look at Brett's face in that picture. That is not spliced together. That is an actual picture of the two of them, Melody found. That's powerful evidence of what they had. Of what?

once, but no longer seem to have. So basically, John Roberts and Brett Kavanaugh were once like John Roberts and John Roberts' number one fanboy. That is who Brett Kavanaugh was on the D.C. Circuit. There was a profile that McKay Coppins wrote of Kavanaugh that recounted that in Kavanaugh's D.C. Circuit chambers, there was a blown-up photograph of Kavanaugh with the chief on the wall. Friends reported that Brett idolizes John Roberts

Quote, this is what an actual source told the reporter if you're looking for soulmate types, that's them So going from number one fan to semi-hater is I think a pretty big thing it has definitely created a more precarious situation at the court when it comes to restraining the Trump administration because Brett is not in play in a lot of really important executive power cases and so it comes down to the Democratic appointees and potentially John and then maybe Amy and

And did the chief ghost Kavanaugh forbear it? Or has Coach Kavanaugh fallen prey to the wiles of Sam and Clarence? But either way, the consequences for democracy are quite significant. So-- I want a rebuttal.

Where is the evidence other than he's not with the chief justice all of the time that they've actually broken up? We haven't even gotten the big cases from this term. That's true. So I'm happy to revisit this debate after, you know, July 1st. But have you met your burden? Leah can decide.

Okay, here's the thing. I'm going to conclude this is a tie. It's a draw. Because both of these, quote, breakups are like the Spider-Man meme, where one Spider-Man is pointing at the other Spider-Man, and they're the same person. Yes. So I'm not convinced. It's a draw. Sorry. Okay, we'll take a draw. Congratulations to you both winners. Thank you. Okay. Speaking of winning...

A quick recap of the opinion/order Judge Breyer just gave us. And I apologize if this is a little rough. I was literally taking screenshots of different opinions, parts of the opinion on my phone that I wanted to be sure I touched on. So first, Judge Breyer rejects the government's argument that the court cannot review the

grounds for the president's federalization of the National Guard. So he says, yes, of course courts owe the president deference. They can't review the president's factual determinations, but at least in the context of domestic matters, courts get to decide whether the president correctly appoints

this statute. So the president invoked two grounds for federalizing the National Guard. One is that the country was, as we jokingly said, in rebellion. That was the dancing. Yeah, that was the dancing part. The second is that the

federal government wasn't able to execute federal law without the involvement of the National Guard. So on the rebellion front, Judge Breyer is basically like, get real guys. This isn't a rebellion. This is called First Amendment activity and protest. Exactly. Exactly. And... Shorter, Charles Breyer. Everybody cut. Everybody cut. Okay.

But Charles Breyer also invokes some interesting sources to support the idea that rebellion really is not synonymous with political protests. So he cites Wuthering Heights.

Oh yeah, examples of this usage include spiritual rebellion. "The event of this evening has reconciled me to God and humanity. I had risen in angry rebellion against Providence." Quoting Bronte, Wuthering Heights. Okay, he's literally stunting on that. It's not helpful. I know. He's like, "I read. I can read."

Unlike you buffoons. So he also goes through different examples about how of course, you know, there is some violence here, but violence might be necessary for a rebellion, but isn't sufficient. And he goes through again different examples of how there has been, you know, some violence in political protests throughout American history.

He also notes that, you know, protests against the federal government is a core civil liberty protected by the First Amendment and so that cannot justify finding a rebellion. Yes. Okay.

So then he also concludes that the president did not actually sufficiently determine that it wasn't possible to execute federal law in the absence of federalizing the National Guard. So he says, while ICE was not able to detain as many people as defendants, read Stephen Miller, believe it could have, ICE was nonetheless able to execute the federal immigration laws.

Then on this point about whether the order has to go through the governor, Judge Breyer agrees with the state that of course these orders have to go through the governor as the statute says. Reading, according to Judge Breyer, is fundamental, right? So very, very good there. He notes that of course the order the president said wrote at the top of it through the governor

That, he says, is not sufficient to actually satisfy the statute. Also, he notes that, you know, again, it just doesn't matter that they, again, told the governor allegedly. Instead, it requires more meaningful consent. Finally, Judge Breyer adds that they are in violation of the 10th Amendment because they are usurping the state's police power.

Federalism. It's a thing. He's totally stunting on them. He is. States rights, you bitches. Um...

So... It's not just for integration anymore. No, it is not. I also wanted to note some real troll energy in this opinion, which I have to say respect to. So toward the closing of the opinion, Judge Breyer suggests that the federal government is harming California because they are depriving the state for two months of its own use of National Guard members to, among other things...

Combat the fentanyl trade. That's good. Oh, dang, Gina. Oh yeah. Oh yeah. Judge Breyer has also been reading the news because he ordered the plaintiffs to post a nominal bond of $100. This is important because there's currently a proposal in Congress that would limit courts' authority to hold officers in contempt.

violating court orders that don't have a bond accompanying them. So Judge Breyer is dotting his I's, crossing his T's, and ensure he can haul these goons off to jail if need be. You know what would have been absolutely iconic? What? If he'd made the bond $1 like Taylor Swift and nominal damages. That would have been iconic.

iconic, I'm still gonna classify this opinion as iconic. No, the opinion, I mean, it could have been even more iconic. Yes. I mean, some notes, I mean, the guy did turn it around in a few hours. I mean, impressive. Wait, so, I don't want to put you on the spot, but does he do anything to stay the order at the end? Like, what is it, what do we know about? I hate

It is ordered. So a hearing on this order to show cause will be held on June 20th. Okay. The court stays this order until noon on June 13th. Okay. So we have tomorrow. 24 hours. Okay. 24 hours stay. So they go to the 9th. Yeah. Right now. We should come back tomorrow and do this again. Yeah. Don't worry. We have more games. Don't worry. We actually do. We had to cut some. We actually do have more games. But we're busy tomorrow. But wow. Yeah.

That is both a great result and I just love that all of you got to see Leah Lippman do this in real time. That is iconic. The opinion is iconic and that display was iconic. These guys can't fucking read. I will read an opinion on a stage live that is 36 pages. And yet, like, just, they are the Leah Michelle of administration. Too soon? Too soon? Too soon?

Just a little. She clarified that. She said she can read. Yeah, yeah, yeah. It's just a meme at this point. Right. Right. Okay, can we go back to the game? Yes, please. Can I play some of the game? I think so. Can I play some of the game? I think it'd be hard to go back to the game if it were a different outcome in this opinion. But I think that, like, I feel buoyed and I'm ready to do it. Let's finish it. Yeah? All right. Back to the breakup bracket. Bracket number two. Donald Trump and Elon Musk. All right. I'm going to give the very quick and straightforward case for Trump-Musk. Musk.

I mean, you know, you go from best buddy/co-president to tweeting and then deleting allegations the president is in the Epstein files, and then the president threatens to criminally prosecute you if you support the other party. I mean, that's a big delta, right, between the relationship as it was and the relationship as it is or was like a couple of days ago, right? Things got a little complicated in the last couple of days. But this is a very big deal breakup.

I'm not even sure I want to use that word, but it's a big deal breakup. That's my succinct case for this as the winner. Okay, hear me out.

Let me tell you the Ballad of John and Sam. So these two were not just casual acquaintances. They actually came to the Supreme Court as brothers in 2005. Both were nominated by George W. Bush within months of each other. And obviously, one was the chief. The other was a spare, if you will. Um...

But they were pretty much in step for most of their early careers on the court. I mean, look at them. They're even dressed alike, right? Like, you wear the red tie. No, you wear the red tie. Like, why don't we both wear the red tie? And they're doing it. So what makes this a new era in their bromance is that now the spare is publicly shit-talking the chief.

And he's possibly doing it on background to the press. And honestly, I'm just gonna say it's giving Prince Harry and Prince William, but without the very hot American wife. That checks out. So I'm gonna play judge since I just read and processed a judge's order.

So now that Elon is walking back this breakup, real we break up, we make up energy, or as Taylor Swift foretold, I say, I hate you, we break up, you call me, I love you. But when Elon tweets, I regret some of my posts about President Trump last week, they went too far. This one definitely goes to John Roberts and Sam Alito because Sam Alito knows how to hold a fucking grudge. Like, they are never, ever getting back together. Like, ever. Yeah.

Big Virgo energy. Yeah. All right, next category, round three. This is friends to frenemies. And we're going to let Kate judge this one for reasons. Okay. This bracket pits, ready? NeNe Leakes and Kim Zolciak. Bravo Andy is merely a bystander in all of this.

Against Taylor Swift and Blake Lively. Okay, so let me explain for those of you who are unfamiliar with the Housewives universe, the NeNe Kim fallout. This happened at an Atlanta reunion and the breakup was so completely epic. I mean, this is the breakup that gave us NeNe Leakes' most iconic line ever,

Close your legs to married men. Is that the most iconic line from Atlanta? I don't know. I think Who Gone Check Me Boo might be more iconic. That's fair. But that just gives me a leg up to argue that the breakup between Taylor and Blake is the more iconic one. And there's a legal hook to this one as well, which is that Taylor... There was adultery in the other one. Well, okay. Okay.

But this is Taylor Swift, who was irritated that she got swept up into Blake's legal fight with Justin Baldoni, during which Taylor was subpoenaed. And maybe, maybe to get back in Taylor's good graces, there's reports that Blake might subpoena Scooter Braun. All right, I get to judge this one. I would normally go with Taylor and Blake because I've heard of everyone involved.

I'm hoping they get back together. I am not convinced it is a real breakup. So I shall go with Nay Nay and Kim. Nay Nay. Even though I literally just learned and apparently didn't even retain who those people are. That's my ruling. All right. Okay. Let's move on to another category. I'm actually blushing hard. All right. We're going to call this one Toxic Men and the Women Who Try to Love Them.

Okay, well... I mean, not like that. She didn't try to love him like that. But that is Sandra Day O'Connor and Justice Scalia. O'Connor was...

Notably cooler towards Scalia relative to her other colleagues as their time on the bench went on. She famously tried to get all the justices to get along. Scalia was really antagonistic toward her early on. He described one of her opinions as irrational and not to be taken seriously. Shockingly, did not, you know, endear him to his new colleague. Obviously, this is Ben Affleck and all of the Jennifers in the world.

Okay. So Ben Affleck has just gone from Jennifer to Jennifer and progressively flamed out in a more fantastic way with each of them. Jennifer Lopez for the second time, and I truly was rooting for them. I know. I really, really was. So I think at this point,

This is an epic breakup. And not only is it epic, I think it must lead Ben Affleck to the self-realization that, in fact, no Jennifer is truly the love of his life. And in fact, the real loves of his life are Boston, Dunkin' Donuts, and Matt Damon. Melissa, I know when I've lost an argument, I'm just going to concede here.

Ben and Jen's are the more iconic breakup. You win. I've been winning all of these. Maybe I should have been a litigator. No. Yeah. Let's make you judge for the next bracket, okay? Okay. So we can make it a fair fight. Okay.

All right, so this bracket, round five, pits Chief Justice Warren Burger and former Associate Justice Harry Blackmun against Taylor Swift and Karlie Kloss. Kate, you will argue for Taylor and Karlie. No. No. Just kidding.

Thank you. I felt a little disrespected there. Kate, why don't you explain the Blackman Burger beef? Way more comfortable on this terrain. All right. So we are talking about the once deep friendship between Warren Burger and Harry Blackman. It started in a St. Paul, Minnesota kindergarten classroom, continued through decades of very intense

Very intense correspondence, saw Blackman as best man in Berger's wedding. They were simultaneously on two different courts of appeals and then had this epic reunion at the Supreme Court. But that reunion proved fatal for the Minnesota twins. They grew further and further apart during their time on the court. This was in part because of Blackman's steady shift to the left, but also in part because of Berger's sort of imperious style as Chief Justice. And by the end of their time on the court,

These once genuine great friends were virtual strangers, if not outright enemies. I know, it sounds intriguing, but here's the thing. The Kaler breakup gave us Down Bad, where Taylor sings about how I lost my twin. It also gave us It's Time to Go, where the words of a sister come back in whispers.

Also, I'm glad we reserved this venue for 24 hours because I'm going to be here all night making my case. But okay, so at the final night in the Los Angeles concert where Carly showed up unexpectedly, I was literally standing between them in Taylor's line of sight to Carly Kloss. And I can just tell you this breakup wins. And in closing, and if you know, you know, and you'll know I've won this one.

I'll just say it hits different with you. And with that, I rest my case. I won. Melissa, do you want to make a ruling? That's like such Pamela Jo Bond-y energy for you. I won. I won. That's way harsh, Ty. I won.

This is a really tough one. I really, I loved your whole exposition, Kate. Thank you. I like that you humanized it, brought it back to kindergarten, but... Those letters are intense. Yeah. But she had quotes, so I'm going to give it to Leah. Thank you. Thank you. All right. Final bracket, round six. This one pits Donald Trump and pre-J.D. Vance Mike Pence against...

Tom Sandoval and Arianna Maddox. Kate, I will let you argue on behalf of Trump Pence. Yeah, clearly that's the one I'm doing. Okay, again, a fairly straightforward case. There was a literal riot where people were calling to hang Mike Pence. President Trump threw his VP under the bus, placed him in mortal danger.

By encouraging a riot in which people were calling for Pence to be hanged, high stakes for the relationship, high stakes for democracy, seems like a bigger deal break up than the Obama. It sounds like a big deal, but Donald Trump told me that was a day of love. And there was no love in that post-filming episode of Vanderpump Rules. Because when Tom asked Ariana if she needed anything, her response was, for you to die.

It generated the iconic "I regret ever loving you" and "I don't care about fucking Raquel." Plus, she's now the host of Love Island, which despite everything you may have heard is not a show about vacationing January 6th rioters. And unlike Trump and Pence, this breakup has its own name: "Scandaval." What's the phrase for the failed Trump and Pence relationship? There isn't one. I believe it's "insurrection." I'm gonna give this one to Kate. Yeah.

All right. We got to land this plane, this Qatari jet, this emolument, if you will. So we are going to end the show by doing what we always do, which is recounting our favorite things from the weeks, the best things that we've read, seen, watched, whatever. So Kate, kick it off. All right. And we're going to be very quick. So first, Melody has another podcast in addition to our podcast. She cheats on us.

The Culture Study Podcast with Anne Helen Peterson. And they had a great interview last week with Sophie Gilbert, author of Girl on Girl, a really excellent book we've all recommended. So check that episode out. And the other thing I'll recommend is Steve Loddick, friend of the pod, has his latest...

installment of "One First Street" is about federalizing the California National Guard. He is just an incredible resource on all of the deep sort of dimensions of the legal questions we were discussing here. So read that and also follow him as this continues to unfold. And then finally, this isn't a thing I read or watched or anything, but I want to call out Argent, the designer whose clothing we are all wearing tonight.

We are very colorful and their wonderful clothing is the reason why. Ambition suits us. I guess so. So my favorite things are Michelle Goldberg's piece in the New York Times, This Is What Autocracy Looks Like. And yeah, that was phenomenal if you haven't read it. Also, I was also going to say our Argent fits. Thank you, Argent, for making Women's Workwear fun.

Okay, I would like to recommend L.A. Mistal's latest column in The Nation, "What the Hell is Posse Comitatus Anyway?" It's a great primer on the Reconstruction Era roots of the Posse Comitatus Act, as well as a very bracing distillation of everything that could go wrong with what is happening in L.A. and elsewhere. I'll also recommend Amazon Prime's adaptation of Alifair Burke's fantastic book, "The Better Sister," with Elizabeth Banks and Jessica Biel.

I also want to shout out my mom friend, Sarah Sklarandes, who provided the amazing shoes that Kate is wearing. Yeah.

Kate was like, what do you think? And I'm like, I have the perfect shoe for you. And she's like, what does it look like? I mean, it's a leopard print, but blue. And Kate looked scared. I did, but I generally do what Melissa tells me, and it generally works out well. And I think it worked out well here. So we are super grateful to Argent and Sally Christensen and Sarah for helping get us dressed. Again, women's workwear does not have to be terrible. It can be fun. Someone please tell the folks in the Trump administration. LAUGHTER

So, to wrap up, we have some final thank yous. Thank you to our tour manager, Sophie Eisenstadt. Thank you to our producer, Melody Rowell. Thank you to our intern, Jordan Thomas. And thank you to the amazing Detox for opening the show. When I say it was the fucking best to be able to appear on a stage after Detox, I mean #goals. Thank you so much, New York!

Hi, it's Leah, and here's your post-live show update on the military occupation of Los Angeles and the legal challenges to it. On Friday, the U.S. Court of Appeals for the Ninth Circuit issued an administrative stay of Judge Breyer's decision. An administrative stay puts the

the decision that is Judge Breyer's decision on hold until the Court of Appeals decides whether to grant a more long-lasting stay. Judge Breyer's decision had invalidated Trump federalizing the California National Guard, and the Ninth Circuit scheduled very quick briefing and argument to decide whether to grant a more long-lasting stay. The argument is scheduled for the 17th, Tuesday, so the order isn't going to go into effect before that. Judge Breyer's decision did not address the lawfulness of Trump deploying the Marines.

In order to federalize the California National Guard, the Trump administration relied on a statute, 12406, that addresses the National Guard. So the administration had to rely on another source of authority to deploy the Marines. And Breyer's order only addressed the lawfulness of calling up the California National Guard under 12406.

Breyer determined that it was unnecessary and too soon to determine whether the California National Guardsmen were violating the Posse Comitatus Act by engaging in ordinary law enforcement. Events seem to have superseded poor Judge Breyer, just like his order kind of threw a wrench into our live show. Specifically, there have now been reports of Marines detaining American citizens, which at the time Judge Breyer issued his order had not yet clearly materialized.

That matters because it tees up the question of not only whether the president had the authority to call up the Marines under these circumstances, but also whether the actions that the Marines are taking constitute the kind of ordinary law enforcement that the Posse Comitatus Act prohibits the military from engaging in. Oh, and who was the citizen who was detained by the Marines? A black veteran.

And again, this looks pretty illegal under the Posse Comitatus Act because detaining someone who purportedly crosses a taped boundary, that's kind of ordinary law enforcement. That's not protecting federal personnel or property. And that's all the updates we have for now.

We had a wonderful time in New York City. If you were one of the people who stuck around after the show for the meet and greet and took a picture, we would love to be able to see those pictures. So please feel free to send them to us. Thanks, everyone. Just a couple of things to tell you about before we go. First, Inside 2025. If you join the Friends of the Pod community today, you can unlock subscriber-only shows like Inside 2025.

plus lots of other exclusive perks. We actually, Leah and Melissa and I, hosted the last episode of Inside 2025, and we pulled back the curtain on what really happens inside the Supreme Court, especially in June when the opinions are flying fast and furious. So subscribe to the Friends of the Pod community today to unlock Inside 2025 and so much more. That's at crooked.com slash friends.

Also, as you of course know, there was an outpouring of overwhelmingly peaceful protest activity in Los Angeles this past weekend in response to ICE raids targeting community members. Trump is escalating the situation. He's deployed the National Guard to L.A. in hopes of seizing more power for ICE and for the presidency and also seems to be trying to turn the media against the protesters.

We've made very clear we think this is a blatant abuse of power. It is designed to intimidate families and stoke fear and break the spirit of the community. And there are lots of important ways to respond. One way is what our friends at Vote Save America are doing, which is raising money for immigration defense groups. So you can go to votesaveamerica.com slash support if you want to donate what you can to help in that effort. This was paid for by votesaveamerica.com, not authorized by any candidate or candidates committee.

Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lipman, me, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. We get audio support from Kyle Seglin and Charlotte Landis. Our music is by Eddie Cooper.

We get production support from Madeline Herringer, Katie Long, and Ari Schwartz. Matt DeGroat is our head of production, and we are thankful for our digital team, Ben Hethcote and Joe Matosky. Our production staff is proudly unionized with the Writers Guild of America East. You can subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com slash at strict scrutiny podcast.

If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

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