A New Term of Supreme Chaos

Strict Scrutiny

The hosts of Strict Scrutiny return to preview the upcoming Supreme Court term, expressing profound concern over the court's trajectory. They

Key takeaways

• The upcoming SCOTUS term features critical challenges to AR-15 bans in Illinois and religious exemptions for schools receiving government funding.
• ProPublica reports allegations that a government contractor illegally funneled nearly $200,000 to a super PAC supporting Senator Susan Collins.
• Concerns are raised regarding the Trump administration's use of 'national security' justifications to bypass legal restrictions on press access and military expansion at Arlington.
• The court is facing scrutiny for its role in enabling large-scale voter roll purges via federal databases ahead of upcoming elections.
• Legal experts warn that the Supreme Court's recent decisions are effectively dismantling protections provided by the Voting Rights Act and Reconstruction Amendments.

Main topics

• Supreme Court Term Preview
• Second Amendment and AR-15s
• Campaign Finance Allegations

Notable quotes

No favor for my sex. All I ask of our brethren is that they take their feet off our necks.

Conclusion

The episode serves as a warning about the erosion of democratic norms

Transcript preview

Speaker 6 (0:00) Strict Scrutiny is brought to you by Americans United for Separation of Church and State. Guess what, folks? It's back to school season. And this year, 5 million children across Texas are going to be greeted by, wait for it, the Ten Commandments in their classrooms. Texas politicians passed a law requiring the Ten Commandments to be displayed in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas, supported by Americans United for Separation of Church and State, are taking the fight to the Supreme Court. And we need you to amplify their voices before the Supreme Court gets its hands on this case. Speaker 4 (0:34) They're going to go up, but... We're going to fight to get him taken down. Speaker 6 (0:40) That was Texas public school parent Ted Lowe. Ted and Rebecca Lowe are an interfaith couple. Ted is Jewish and Rebecca is Christian, and their kids are in Texas public schools. The story that they tell in this video is moving, and we hope that everyone hears it and shares it. Because there is a human cost to Christian nationalist policies like these Ten Commandments laws and the decisions that the Supreme Court hands down. You can visit au.org forward slash 10C to learn more about this case and how you can help join the fight to protect church-state separation. Speaker 1 (1:13) She Speaker 3 (1:28) spoke with unmistakable clarity. She said, no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Speaker 7 (1:58) Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Leah Littman. I'm Kate Shaw. And I'm Melissa Murray. Speaker 6 (2:07) And yes, folks, the band is back together. It is a new Supreme Court term, which means that we need to be operating on all cylinders to brace for what might be coming down the pike. So with all of the justices back to their regularly scheduled. SCOTUS maxing, we have decided that we will respond in kind with a little strict scrutiny. Post-maxing. Speaker 4 (2:30) When you said firing on all cylinders, for some reason I was just brought to mind, somebody recently told me that our show reminds them of, do you guys ever listen to the NPR show Car Talk? The like brothers who would like just banter. And then she was like, no, no, I mean, because you have such great chemistry. I was like, okay, I think it was meant as a compliment. So anyway, I passed Speaker 7 (2:47) that along. Speaker 4 (2:47) Little did they know we were post-mogging Speaker 7 (2:48) and pod-mogging each other right Speaker 4 (2:50) before we started recording. Right before, but critically not in the actual publicly released version of the episode. But yes, we are back together. We are very excited to be back together. And we are not excited about the fact that we are staring down the barrel of a new Supreme Court term. But since we are, we thought we would provide some table setting, just some big picture thoughts about where we are and what we're looking for in the upcoming term. We're not going to really do a detailed rundown of particular cases, although we will reference some notable ones. But obviously, as we get closer to the arguments in those cases, we will do deep dives on all of those. After we do that table setting, we're going to bring you... conversations with two people who can speak to the real effects of some of the legal matters that we will be discussing. So Melissa will talk with Aaron Haynes about attacks on the press and censorship, and Leah will speak to Mahmoud Khalil about immigration detention. Okay, on to SCOTUS. Its term starts next week. Deep breaths. Who wants to start? Speaker 7 (3:41) I volunteer as tribute. I fucking hate it. Have at it. I fucking hate it. I'm shocked. I'm shocked. Life of a Showgirl encore and the State of the Supreme Court perpetual encore. The combination of the two have me really convinced that our society has gone so far. just don't have a chance of turning back. But more on the latter SCOTUS part. I have two big picture thoughts about where we are now. I'll start with a shorter one. We'll come Speaker 4 (4:06) back to a little Taylor later in the hour, just for those who are like waiting for Leah's full takes. Don't worry. This is very Speaker 6 (4:11) fucking dark, Leah. I rode here in a Waymo and I feel like I already took my life into my own hands already today. This is not what I was expecting. I'm Speaker 7 (4:19) sorry. But it's going to get even bleaker because my first point was going to be just how much our expectations have been warped by the court's bad behavior and how when you step back and actually reflect on it, it kind of reveals that is the expectations reveal how messed up things are. Like I was thinking about the upcoming term and we already know what's going to happen in a bunch of these big red meat for the right culture war cases, the Second Amendment case about AR-15s and semi-automatic rifles. The court is going to insist those have to be freely available because free. and amosexual kinks. We know what's going to happen in the religious exemption case where religious schools are seeking permission to opt out from the state's funding conditions that they not discriminate against LGBT people. I have a pretty good idea what's going to happen in the Arizona voting case where they're going to allow a state to require satisfactory proof of citizenship before voters are allowed to register. And I also feel like I have a good idea what's going to happen in the trans rights case where they're going to throw a big standing bone to allow transphobic parents to assert their parental rights claim to stymie state efforts to make homeless services accessible to trans kids. So they're just going to be further exacerbating the disparity, not bothering to consider whether parents have a right to help their kids get health care, only whether parents have a right to keep their kids from getting health care. And we know what they're going to do because they've showed us who they are and what they're about. They mainline Republican Party talking points and Republican Party grievances, spit them out as law. And that's just our expectations. And by themselves, that's pretty damning. All right. I think I'm just going to hop Speaker 6 (5:47) back in that Waymo right now. Drive Speaker 4 (5:50) right into the Pacific Speaker 6 (5:50) Ocean. You'd rather face that than this SCOTUS term? Okay. Yeah, Speaker 7 (5:54) that's fair. Speaker 6 (5:55) Yeah. Wow, Leah. I don't even know how to top that. I won't even try to gild your lily, Leah. Let me add on, though, to some of the points that you made. One theme that I think you were touching on that is emerging, has been emerging, is this idea of the court normalizing bad behavior. And a number of different commentators have noticed that this term doesn't really seem like much of a barn burner. And I think that's probably true, at least not yet. It is true that the December sitting is going to be. A banger, right? So that's the one with a lot of the big culture issues that you mentioned. Those will be on the docket. So Leah mentioned Viramontes. That's the challenge to Illinois' AR-15 ban. There's also Ferguson. That is the case about parents' rights and minors' access to trans care, trans rights generally. That sitting also includes the Arizona voting rights case that Leah mentioned. It also includes Jopi. That is the Han Solo Millennium Falcon beer case that our friend Ellie Mestal mentioned over the summer. But that December sitting, as packed as it is, it's really kind of anomalous. And for that, maybe we should be thankful. It is otherwise a pretty light docket. And I think, though, that that's not because the court is showing restraint. It's just that they've normalized doing so much substantive stuff on the shadow docket, the interim docket, the emergency docket, whatever we're calling it. The shitshow docket? The shitshow docket. The just the tip docket. They've done so much on that. We've come to accept it as normal that... It doesn't even seem weird when the merits docket is relatively light. The other alternative explanation is that they are anticipating a shit ton of shenanigans coming out of or running up to the midterm elections, and they're keeping space available for that. That's also their fault because they've facilitated, midwiped some of this shenanigans that are likely to happen. So that part, they've just normalized a lot of crap that's going to happen, and we see it reflected. in the docket itself. My next point really relates to a lot of what we saw in October term 2025. So in Louisiana v. Kelly, that was the case that was decided in April in which the court basically hobbled what remained of the Voting Rights Act. The court also went balls out on hobbling the Reconstruction Amendments, insisting that the 14th and 15th Amendments, which sought to remedy the lingering residue of slavery and to incorporate newly freed African Americans into the body politic as equal citizens, the court insisted that these amendments were studiously race neutral. I guess. And I'm stealing myself for Viramonte's, that AR-15 case, where the court is literally going to lean in again to this idea of race. So they're jettisoning race neutrality in order to talk about all of the ways that African-Americans have been disarmed throughout history and how the only way to remedy that racial injustice is to allow everyone in the whole country to tote. an automatic weapon, you know, for racial justice. Speaker 7 (8:59) One definitely Speaker 6 (8:59) follows from the other, right? Like logic. Clearly. You know, so no 14th Amendment, no 15th Amendment, no race-conscious remedies in those realms. But for guns, we care. We care about the Blacks. Speaker 4 (9:12) The way to stop discriminating on the basis of race, Melissa, is for everyone to have a semi-automatic rifle. I think a wise man. I mean, Speaker 7 (9:18) yes, I guess. That's poetry. I swear that's going to appear in a Brett Kavanaugh opinion. Oh my God, we should not call Speaker 4 (9:24) it into being. It is bleak. It is dark. Melissa and Leah covered many of the lowlights already. Maybe I'll just flag one more case that is going to be argued in the first week of the term, which is a case about the military detonating toxic explosives. on Guam and indeed one of Guam's most pristine beaches and just insisting it doesn't have to comply with environmental laws when it does that. And several others that we will mention are, I think, big cases to watch. But I actually wanted to maybe just... say that I don't even want to talk about the big cases to watch right now. Like, maybe this is getting a little existential or something. But my first big picture thought that I was mulling over as I thought about what I wanted to talk about on this term preview episode was that I actually have so enjoyed getting the chance. I mean, enjoyed is maybe the wrong word, but I have appreciated the chance to talk about Supreme Court reform and not individual prospective Supreme Court cases and these bonus episodes we've done over the course of the last month. And Part of me just thinks we should spend some time on this episode. And so I guess that's what I'm doing right now. Just going, if not deeper, we're not going to do a deep dive right now, but just continuing to return to the point that Supreme Court reform has to be front and center in every conversation about the Supreme Court and maybe every conversation about politics writ large in the next six weeks. I think it's so, so important. The genre of this, I think, is echoing something that you said, Leah, about this all sort of feeling like a foregone conclusion, like the genre of the curtain raiser, where in normal times we will like have a, set of conversations about the big cases that the court is taking up, those are fun to have in normal times. Like the court does take up some really tough and interesting cases, and it can be satisfying and engaging to talk through the puzzles that they present and to like untangle lines of doctrine and to try to game out where various justices might be. But with so much of what the court is likely to do, a foregone conclusion, and the court just feeling so increasingly out of control and illegitimate, I am finding myself searching for the joy in that ordinary curtain raiser. Not you, Kate! What have we done? What have we Speaker 6 (11:24) done to Kate? What have we done to Kate? Speaker 4 (11:26) Back to kind of being together in Car Talk, I think I'm going to have to find my joy in us being, I think, back in a more regular schedule where the three of us will have more aligning episodes where we are all on after a summer of mostly not being on episodes together. And then there is, I guess, if not joy or pleasure, exactly like some satisfaction in using the platform and like the weekly episodes to try to keep attention trained on SCOTUS, not just the individual cases, but the larger structural questions and the court's leading role in our current democratic crisis. And so I guess we are going to do that. Who are you and what have Speaker 6 (12:02) you done with Kate? Where Speaker 4 (12:04) is Kate? I took some time off this summer. I looked deep inside and I had a hard time finding any silver linings, Melissa. I really did. Speaker 6 (12:11) Kate, we turned you. We broke you. Speaker 4 (12:14) Or John Roberts and the rest of them did. Yeah. So that is, I think, my top line opening observation. And maybe I'll just say one more thing to add to something, Melissa, you said about November and December being the places to really watch for election-related developments. And by that, I mostly mean November after the election and December, because we should say, as we sat down to record on Friday, the court had just granted another... emergency application from the Trump administration. So this one stayed a D.C. district court order and allowed the administration to begin implementing this new program for checking citizenship eligibility using a new federal database, although I guess it's actually just linking an existing Social Security database to this other existing database known as the SAVE database. So I will say I'm at an academic conference. This just broke. It sounds really alarming, but there's, I think, a very big kind of but. The court says in its per curiam opinion that Another statute, the National Voter Registration Act, prevents states from doing any large-scale purges right now pursuant to this new database checking system because of the proximity to the election, although they can still do individualized citizenship checks. I mean, I am actually curious if you guys have a take on this. I can't yet tell how big a deal it is. It does seem like in the hands of bad faith actors, of which there are many in our political landscape right now, this could result in meaningful disenfranchisement. But the fact that... The majority seems to say clearly you can't do anything large scale. And that Jackson, who dissents with Sotomayor and Kagan, while furious about the disregard of what the legal test for emergency relief like this is supposed to be, does say the order will have minimal impact in at least the short term. So I guess this is not like five alarm fire. Is that basically where you guys came down on this order? Speaker 6 (13:53) I'm just thinking this is for 2028. Exactly. And they're facilitating the stealing of Speaker 4 (13:58) 2028. Speaker 6 (13:58) And Speaker 4 (13:58) we Speaker 6 (13:58) know that database produces Speaker 7 (13:59) false positives, right, misidentifying people, right, as not citizens. Like, we just know that. And so I think the question at this point is just how big the scale potentially is going to be for 2028. Like, what systems to put in place to ensure that people verify whether they are, in fact, on voter rolls in the lead up to the election. And the one small blessing is... Hopefully, this actually isn't going to have a huge impact for 2026, but people can begin preparing for what to do if and when they try to use it in 2028. Speaker 4 (14:26) Yeah. Okay. All right. So that did just come down, but that court did not. I mean, how could it have allowed this to really go into effect for 2026? Although, you know, hard to put anything past them at this point. Speaker 6 (14:37) I'm sure Speaker 4 (14:37) Sam Littler wrote a draft opinion explaining why. There she is. Maybe. Okay, so two of them, maybe. Although, interestingly, they did not hear her try to say, like, yes, he can and he can do it now as opposed to in 2028. So I guess that's a small blessing. But in any event, I do think that both in this order and more generally, we do appear to have dodged some of the most egregious election interference bullets in the pre-election. period. Back to what Melissa said about November and December, I definitely think we cannot rule out post-election litigation, right? So people who lose the election trying to maybe take a page from the book of, do you guys remember Jefferson Griffin in North Carolina? Do Speaker 6 (15:13) I remember him? That is a name that only a mustache-twirling confederate would give a child. It Speaker 4 (15:21) is, in fact, his real name. And we talked about him a lot on the show because he was a candidate for state Supreme Court in North Carolina. He lost the election, then spent months litigating to try to get the courts to magically turn him from a loser to a winner and came. unnervingly close to succeeding. But anyway, you can imagine something similar happening with a candidate trying to get mail ballots thrown out or manufacturing some non-citizen voting issue. And there could also be misogust in Congress around refusing to seat Democrats, which could end up in the courts, though unclear if they would actually intercede. So all of that, I think, is a possibility. And so November and December, I think, could be much crazier on the SCOTUS front than right now we are anticipating. I have one more thought. Wait. Should I should Taylor now or maybe come back to Taylor? You can Speaker 7 (16:04) interject your thoughts now. I'm still. You're still processing. Building up my. Oh, I see. OK. All right. Well, I will just say I like patient zero. Sorry, not sorry. I will just immediately add that the immediate first line, if you want a party, makes zero fucking sense. The bridge is appalling. And three, the people in my DMs saying they like this and now you, Kate. are, I think, why we are on the verge of being a failed state. Speaker 4 (16:31) But I'll return to this later. Well, because the bar is now in hell. It sounds like it would be a mid-level fave on, like, Tortured Poets Department. That is how I feel about it. No, Speaker 7 (16:40) incorrect. Like, Speaker 4 (16:40) it would. Okay. That's how Speaker 6 (16:42) I feel about it. I literally have Speaker 7 (16:43) no Speaker 4 (16:43) idea what you're talking about. Speaker 7 (16:44) Bringing it back to normalizing bad behavior, which Kate is doing in real time. You know, the 8th Circuit redistricting, where do you think the 8th Circuit learned that you can just make shit up, ignore judicial opinions and basic features of our judicial system, like the idea that trial court... make factual findings or that appellate courts have the final say. I learned it from watching you, Dad, as Melissa would say. Speaker 4 (17:06) So the Missouri redistricting task force, Speaker 7 (17:09) truly wild. You know, the Missouri Supreme Court told the Missouri Secretary of State that the state had to use this 2022 gerrymandered map, not the 2025 Trump-inspired mid-cycle redistricting map. But then a federal district court said, nah, I know state law better than you do, state Supreme Court. And the state has to use the 2025 map, not the 2022 map that the Missouri Supreme Court required to be used. Now, that federal court order, a temporary restraining order. was stayed on the shadow docket by even dumb, dumb Brett Kavanaugh. But still, the lower federal courts and a circuit weren't done. They decided to affirm the temporary restraining order, but as a permanent injunction. And because they said this is a permanent injunction rather than a temporary restraining order, they were like, oh, yeah, we're doing something totally different than what the Supreme Court told us we couldn't do. It's awfully thin line there. Speaker 4 (17:55) All right. So I sing Speaker 7 (17:56) the baloney. Speaker 4 (17:57) And it is baloney. And because it is, do you think it's likely that we're going to get a Gorsuch slash Kavanaugh writing lecturing the lower courts for not complying with SCOTUS? I Speaker 7 (18:06) actually think there's a non-zero chance that the delay is like they are writing something. Not necessarily two of them, but like a per curiam kind of opinion. Speaker 6 (18:13) OK. Probably. It's probably taking a long time because they're fighting over who gets the purple marker. Well, Speaker 7 (18:17) exactly. And like Brett Kavanaugh, right, is like smudging his fingers and finger paint. And so that drafting process just takes takes a lot longer. Speaker 4 (18:24) It Speaker 7 (18:24) takes time. We Speaker 4 (18:25) should warn people that to give no credit if they actually write something lecturing, because this would be the first time that they've issued such a lecture to anyone but lower court cases. And Speaker 7 (18:33) the defiance is so Speaker 4 (18:33) egregious. It's just laughable. Speaker 7 (18:36) And, of course, after we finish recording, the Supreme Court did in fact stay the Eighth Circuit's ruling with some, I don't know, negging and swipes at the Eighth Circuit, which failed to understand that only the Supreme Court and the Supreme Court alone and sometimes the Fifth Circuit, get to make shit up and play fast and loose with the law. Or at least that you can't play fast and loose with this Supreme Court's own dick tuts. Everything else is fair game, though. Here's what the Supreme Court had to say. Quote, given this court's two prior orders in this litigation, our conclusion that this was air should come as no surprise. That's what I mean by swipe. And then, just to make it extra clear, these are the final two sentences. Quote. The District Court and Court of Appeals should not enjoin or otherwise prohibit the use of the 2022 map. And the District Court and Court of Appeals should not order or otherwise require Missouri to use the 2025 map in the 2026 congressional election in Missouri. SCOTUS out, and now back to our regular program. Speaker 6 (19:37) Strict Sturdy is brought to you by Quince. You know those pieces in your closet you find yourself wearing on repeat? That sweater that goes with everything, the perfect pair of pants, or the furry blanket that your dog likes to lie on all the time? Those are the pieces that make your life easy, and that's what Quince does best. Quince focuses on high-quality wardrobe staples made with premium materials like 100 % Mongolian cashmere, organic cotton, and merino wool. Their styles are timeless, versatile, and designed to become the dependable pieces you reach for day after day. 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Head over to zbiotics.com forward slash strict. Use code strict for 15 % off your first order. ZBiotics is a partner of mine and Strix scrutiny. Speaker 7 (22:25) Okay, so my other theme slash big picture thought is going to require a somewhat extended, perhaps conspiratorial sounding rant that will might involve me talking for a bit and probably quickly. So just bear with me like this is what happens when you are a conspiracy theorist. But my thought was even taking the events of just the last few weeks. I've been struck by how much the court is to blame for, at least partially, and how they're also probably going to make it all somehow even worse. So the president announced he was moving ahead with the plans for a triumphal arch that veterans say will sully Arlington Memorial Cemetery. And the president has deemed this a national security matter. And it's like, where did he pick up the notion that simply saying national security three