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Strict Scrutiny

Strict Scrutiny

Strict Scrutiny is a podcast about the United States Supreme Court and the legal culture that surrounds it. The show is hosted by three women, Leah Litman, Kate Shaw and Melissa Murray, who are three law professors, but they?re also swimmers, mothers (of humans and dogs), and celebrity gossip enthusiasts. They?re women who?ve practiced before and write about the Court in their professional lives. They have a different voice?one that celebrates the contributions and opinions of women and people of color. They provide intelligent and in-depth legal analysis alongside their unvarnished, respectfully irreverent takes. And they want to do it in a way that is accessible to a variety of listeners, including Supreme Court regulars, lawyers, law students, and members of the public who are looking for a window into the Court?s decisions, as well as its culture, personalities, and folkways. The hosts think SCOTUS is serious business?but they don?t take ourselves or the Court too seriously. They?ve got hot takes, jokes, and a lot to say.

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Turning Fan Fiction Into Reality

Melissa, Kate, and Leah preview the cases that the Supreme Court will hear in December-- from election law shenanigans, to discrimination as protected speech, to making fraud great again. 

2022-11-28
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Justice Samuel A-leak-o?

On Saturday, the New York Times published a piece about a former anti-abortion leader's claim that he was told the outcome of a 2014 Supreme Court case before it was public. The story offers a glimpse at a years-long campaign by conservative activists to obtain access to and ingratiate themselves with Supreme Court justices. It's really wild and really disturbing-- so Leah, Kate, and Melissa convene for an emergency episode to discuss.

2022-11-21
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The Uncertain Future of the Indian Child Welfare Act

Rebecca Nagle, host of Crooked Media's This Land, joins Melissa, Leah, and Kate to recap the arguments in Haaland v. Brackeen. The case revolves around the Indian Child Welfare Act, which lays out a set of preferences for where Native American children can be placed for foster care and adoption. The challengers, white foster parents trying to adopt Native American children, are claiming a violation of the Equal Protection Clause of the 14th Amendment. But as Rebecca explains, tribal sovereignty isn't racial-- it's political.

Plus, we take a look at the midterm outcomes and what they mean for the courts.

Listen to Season 2 of This Land, all about the  back story of Haaland v. Brackeen.Read Rebecca Nagle's piece in The Atlantic, "The Supreme Court Case That Could Break Native Sovereignty."
2022-11-14
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Affirmative Action Reaction

Leah, Kate, and Melissa recap the many, many hours of oral arguments in the affirmative action cases SCOTUS heard last week.

2022-11-07
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Open Season on Precedents

On Halloween, the Supreme Court will hear pair of cases challenging affirmative action in university admissions. Spooky! Janai Nelson, President and Director-Counsel of the NAACP Legal Defense Fund, joins Melissa, Kate, and Leah to preview the cases.

Listen to an episode on race conscious remedies from our spin-off show, Irrational Basis Review
2022-10-30
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Credible: Why We Doubt Accusers and Protect Abusers

Kate talks with Deborah Tuerkheimer about her recent book, Credible: Why We Doubt Accusers and Protect Abusers. A former prosecutor and leading authority on sexual violence, Deb's book examines why we are primed to disbelieve allegations of sexual abuse--and how we can transform a culture and a legal system structured to dismiss accusers.

This episode contains discussions of sexual violence. Please use discretion and take care of yourselves.

2022-10-24
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Pigs, Prince, and Proven Innocence

Kate, Melissa, and Leah recap some of the cases argued at the Supreme Court last week: Reed v. Goertz, National Pork Producers Council v. Ross, and Andy Warhol Foundation for the Visual Arts v. Goldsmith.  Plus, there's a lot to catch up on in court culture, including judges trying to cancel cancel culture, and another round of Ginni Tonics.

2022-10-17
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Limiting the Inevitable Damage

Melissa, Kate, and Leah welcome Sam Sankar of Earthjustice and Deuel Ross of NAACP Legal Defense and Educational Fund to recap  arguments the Supreme Court heard this week in two big cases. Sackett v. EPA is a challenge to the EPA?s authority to regulate wetlands, and Merrill v. Milligan is a Voting Rights Act case out of Alabama that?s really about whether Congress may ensure the representation and political power of voters of color.

2022-10-10
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How SCOTUS Distorts Democracy

It feels like we're still processing the end of last term, but alas, the first Monday in October is upon us. Kate, Melissa, and Leah kick off season 4 of Strict Scrutiny with a look ahead at what's sure to be another heinous Supreme Court term. 

2022-10-03
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Judicial Joyriding

For the University of Michigan's Homecoming weekend, we held a special live recording for our season finale. Michelle Adams joins Kate and Leah to wrap up the justices' summer shenanigans and provide a look forward at the collegiate affirmative action cases coming before the Supreme Court this term. Plus, Sommer Foster, co-Executive Director at Michigan Voices, joins to talk to us about Reproductive Freedom For All, the ballot initiative campaign to protect reproductive freedom in Michigan.

2022-09-26
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Unprincipled and Inconsistent Voting Rights Shenanigans

Leah talks with Wilfred Codrington III about his article, "Purcell in Pandemic," which appeared in the NYU Law Review. The Purcell Principle comes from a 2006 Supreme Court case about what makes an appropriate timeline for changing election laws. The principle wasn't clear to begin with, and has only gotten more confusing in litigation surrounding the 2020 election. Will we see it continue to play out in this year's midterms?

2022-09-19
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Please Pay Attention to State Courts and Constitutions

Kate, Leah, and Melissa convene a panel to persuade you that the fight for progressive causes has to include state courts and state constitutions. To get the lay of the land and identify the challenges ahead, they welcome four guests: Miriam Seifter of the University of Wisconsin-Madison, Jessica Bulman-Pozen of Columbia Law School, Daniel Nichanian of Bolts, and Alicia Bannon of the Brennan Center.

2022-09-12
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Debunking the Independent State Legislature Fantasy

With guests Jamelle Bouie and Carolyn Shapiro, Kate and Leah analyze the fan fiction that is the Independent State Legislature "Theory" (emphasis on the quotation marks), which threatens to take the main stage in an upcoming case about the power of state legislatures to set rules for federal elections. 

2022-09-05
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Fossil Fuel Rules Everything Around Me

Senator Sheldon Whitehouse joins Leah and Melissa for a deep dive into West Virginia v. EPA, the Supreme Court's major climate case last term.

2022-08-29
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What the Fight After Roe Actually Looks Like

Somehow, it's only been less than two months since the Supreme Court overruled Roe v. Wade with their decision in Dobbs v. Jackson Women's Health Organization. But A LOT has happened since then. To further examine the fall-out, we assembled a stellar crew to help us get the lay of the post-Roe land: journalist Rebecca Traister, health law expert Michele Goodwin, and U.S. Congressman Mondaire Jones.

2022-08-22
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Women Are Not Without Power

Even though it's summer, there's a lot to catch up on in the legal world! Leah and Melissa talk with Grace Panetta, who co-wrote a piece for Business Insider on the GOP's plans for state constitutional conventions. And then they turn toward Kansas, where voters dramatically turned out to declare that reproductive freedom is an essential part of the state constitution. They're joined by several of the activists behind the victory.

2022-08-15
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Hostility to Mercy

Leah talks with Lee Kovarsky of the Capital Punishment Center at the University of Texas about the Supreme Court's treatment of death penalty cases.  Before 2020, there hadn't been a federal execution since 2003. In the last six months of the Trump presidency, there were 13. Lee tells us how that came to be, and what the justices' writings signal for future death penalty cases.

Read Lee's article, "The Trump Executions," in the University of Texas Law Review
2022-08-08
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Law & Religion on the Barrett Court

It's a deep dive into law and religion in this conservative supermajority iteration of the Supreme Court. Kate talks with Micah Schwartzman of UVA and Nelson Tebbe of Cornell about some of the major religious liberty cases that have come before the Court in recent years, and what the Court may be signaling for the future.

2022-08-01
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The Family Roe: An American Story

Melissa interviews journalist Joshua Prager about his book, The Family Roe: An American Story. Prager spent hours interviewing Norma McCorvey (aka Jane Roe), her daughters, and other key figures throughout the decades-long debate over abortion rights in America.

2022-07-25
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How Mitch Rigged the Courts

While the Supreme Court gets all the focus, lower federal courts are just as much in need of reform. Unfortunately, rigging the courts is a game the GOP knows how to play. In this episode, Leah talks with Rakim Brooks of Alliance for Justice, and Brandon Hasbrouck* of Washington & Lee Law School, about how federal judges get picked, how Mitch McConnell has played the long game, and how the Democrats need to move forward in the judicial selection process.

*Brandon also wrote an article called "Movement Judges," which just came out in the NYU Law Review. Check it out for more on this subject!

2022-07-18
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Break Glass in Case of Emergency

It was a long term. It's over. Leah, Melissa, and Kate recap what all happened, what we maybe learned out of it, and what we have to look forward to.

 

 

For a transcript of this episode go to https://crooked.com/podcast-series/strict-scrutiny/

2022-07-11
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Smashing Precedents and Making Up Facts

The Supreme Court finally finished the OT2021 term-- and it was a doozy. Kate and Leah recap the last few opinions, including Oklahoma v. Castro Huerta, with special guest Greg Ablavsky of Stanford Law [3:55], and the "praying coach" case, Kennedy v. Bremerton School District [34:22]. Then, a lighting round of four more opinions and other Court-related news [53:06].

 

You?re angry. We?re angry. Let?s do something about it. From directly supporting patients who need abortions right now, to electing pro-choice candidates in 2022 and building a progressive majority over the long term, you can find everything you need to fight back in our Fuck Bans Action Plan hub at votesaveamerica.com/roe.

 

2022-07-04
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Just how bad is the Supreme Court's EPA decision?

Kate and Leah break down the "free-wheeling, free association analysis" of the Supreme Court's opinion in West Virginia v. Environmental Protection Agency. Basically, it's bad! And not just because of the impending climate apocalypse!

2022-07-01
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This Maximalist Conservative Supermajority

The pace of opinion releases has accelerated considerably as we speed toward the end of June and the justices' vacations. Even though last week brought us blockbuster cases about guns and abortions, there are still lots of consequential opinions getting overlooked. Leah, Kate, and Melissa break them down-- after a few more thoughts about Dobbs [5:32]. Plus, Melissa gets to finally flex her British Royals Brain in the court culture segment [1:05:28].

Opinions discussed:

Marietta Memorial Hospital v. Davita [20:23]

A case about a Medicare statute and end-stage renal disease

US v. Taylor [25:24]

A habeas with a positive outcome!

Carson v. Makin [43:41]

In which the Supreme Court embiggens free exercise rights

Shoop v. Twyford [1:00:28]

If you?re seeking relief, the answer is ?no? & the only question is "why"

Berger v. NC State Conference of NAACP [1:01:56]

Involves a challenge to North Carolina's voter ID law

Becerra v. Empire Health [1:02:52]

Related to Medicare reimbursement rates, with a really weird 5-4 line-up

Two more things:

If you missed our episode "What's next in a post-Roe world," you should definitely go back and listen to get a sense of the fight ahead.You?re angry. We?re angry. Let?s do something about it. From directly supporting patients who need abortions right now, to electing pro-choice candidates in 2022 and building a progressive majority over the long term, you can find everything you need to fight back in our Fuck Bans Action Plan hub at votesaveamerica.com/roe.
2022-06-27
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Roe is dead. Now what?

Today the Supreme Court issued their opinion in Dobbs v. Jackson Women's Health Organization. It overruled Roe v. Wade and Planned Parenthood v. Casey, meaning there is no longer constitutional protection for the right to an abortion. Melissa, Leah, and Kate recap the horrific opinion by Justice Alito and the somehow-worse concurrence by Justice Thomas, and also read some passages straight from the dissent.

You?re angry. We?re angry. Let?s do something about it. From directly supporting patients who need abortions right now, to electing pro-choice candidates in 2022 and building a progressive majority over the long term, you can find everything you need to fight back in our Fuck Bans Action Plan hub at votesaveamerica.com/roe.

2022-06-25
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How SCOTUS gutted our gun laws

Today the Supreme Court released its opinion in NYSRPA v. Bruen, saying that the constitutional right to carry a gun extends beyond the home. Kate, Leah, and Melissa break down the opinion and what it means for the future of gun regulations and states' rights.

2022-06-24
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Reeking of Impropriety

The Supreme Court handed down 11 opinions last week-- 18 more to go. Leah and Melissa recap the outcomes, and then turn to our weekly "Ginni Tonic" segment, because there's always something new there.

2022-06-20
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Queer Supremacy (A Pride Special)

It's a special Pride episode of Strict Scrutiny! Special guests Joshua Matz and Chase Strangio join Melissa, Kate, and Leah to highlight developments and ongoing litigation around LGBTQ rights.

This year, Crooked Media?s Pride fund is supporting three incredible organizations that provide community building, gender affirming, and life saving resources to the queer and transgender community. Visit crooked.com/pridefund to donate and learn more.

2022-06-16
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The Newly Constituted and Restless

The Supreme Court released four opinions last week (still 20-something to go before the end of the term), so Leah, Kate, and Melissa break them all down. Plus, they address the need for increased security for all federal judges, and offer a recipe for a new, refreshing cocktail to sip while you take in all the news.

Recapped opinions include the bankruptcy case Siegel v. Fitzgerald [8:26], the Medicaid case Gallardo v. Marstiller [10:34], the pro-arbitration-plaintiff-win-after-a-kick-ass-argument-by-lady-lawyer case Southwest Airlines v. Saxon [21:07], and the Bivens case, Egbert v. Boule [26:19].

2022-06-13
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Allow Me To Retort

Melissa interviews Elie Mystal about his new book, Allow Me To Retort: A Black Guy's Guide to the Constitution.

P.S. Melissa, Kate, and Leah will be on The Problem with Jon Stewart this Thursday, June 9th! Don't miss it.

2022-06-06
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Innocence Isn't Enough

Investigative journalist Liliana Segura joins Kate, Melissa, and Leah to tell the story of Barry Jones, who was the center of one of the cases in Shinn v. Martinez Ramirez [3:30]. The Supreme Court released an opinion in the case last week, and it's bad. There is a miniscule moment of joy, though, in the recap of the opinion in Morgan v. Sundance, which is about arbitration and also Taco Bell [51:58]. Finally, we do a quick round-up of other court-adjacent news, including the fever dream that is Ginni Thomas's email signature, and theories as to why the Court is being so unusually quiet for this late in the term [59:28].

2022-05-30
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The Only Loser is the Public

Ellen Weintraub, commissioner of the Federal Election Commission since 2002, joins Kate and Leah to break down the Supreme Court's opinion in FEC v. Ted Cruz, an important campaign finance case [2:07]. (Commissioner Weintraub also joined us to preview the case before oral arguments-- go back and listen to that episode if you haven't!) Kate and Leah also debrief the opinion Patel v. Garland, a major immigration case with a pretty devastating result [32:45]. They also flag a grant of a habeas-related case the Court will hear next term, Jones v. Hendrix [47:23], and then try to bring their blood pressure down by catching up on various statements and speeches Justices Thomas and Alito have given recently [52:01].

2022-05-23
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What's next in a post-Roe world

Kate and Leah spend some additional time on possible fallout from a Dobbs opinion overruling or eviscerating Roe. They interview two people with insight on what we can expect in a post-Roe world. Diana Greene Foster is a professor in the Department of Obstetrics, Gynecology & Reproductive Sciences and a researcher on reproductive health at UCSF. She's also the author of The Turnaway Study: Ten Years, a Thousand Women, and the Consequences of Having--Or Being Denied--An Abortion [3:14]. And Greer Donley is an assistant professor at University of Pittsburgh Law, and one of the three authors of the extremely topical and important article, "The New Abortion Battleground," which is forthcoming in the Columbia Law Review. The paper is written together with Professor David Cohen at Drexel Kline School of Law and Professor Rachel Rebouche, Interim Dean of Temple University Beasley School of Law. The paper analyzes the inter-jurisdictional issues that will emerge if and when the Supreme Court overrules Roe [32:04]. We'll also catch up on some of the additional news and hot takes people have had since the leak happened [57:52].

2022-05-16
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Stay Mad Like Sam

Kate, Melissa, and Leah recap the remaining arguments from the April session: Nance v. Ward [1:38] and Biden v. Texas [18:04]. They also get into a unanimous opinion about religious speech [43:28], and of course, break down some court culture before continuing their investigation into the leaked draft opinion [52:30].

Protect Abortion Access. Donate to Abortion Funds. VoteSaveAmerica.com/roe

2022-05-09
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What the SCOTUS leak could mean for abortion

Kate, Leah and Melissa get together for an emergency episode to discuss a leaked draft Supreme Court opinion that indicates the justices are prepared to overrule the decisions protecting and reaffirming the constitutional right to an abortion.

 

Protect Abortion Access. Donate to Abortion Funds: http://votesaveamerica.com/roe

2022-05-04
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The Inner Life of Coach Kavanaugh

Leah, Kate, and Melissa bring you a jam-packed show recapping news, arguments, and opinions from the Supreme Court in the past couple weeks. Recaps include "the praying coach case," aka Kennedy v. Bremerton School District [10:26], Shoop v. Twyford [45:27], and Oklahoma v. Castro-Huerta [50:05]. We also do some math trying to figure out who might-- or might not-- have the still-to-come opinion in Dobbs [57:21], and get out the kleenex for the Chief Justice's teary tribute to Justice Breyer [1:06:44].

2022-05-02
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Coup, But Make It Look Legal

Kate's off glamping, so Leah and Melissa are left to their own devices to recap SCOTUS news [1:37], arguments from the first week in the April sitting [27:09], and fresh opinions [54:00]. Plus, a new game: X-Treme Textualism.

2022-04-25
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The Non-Existent Establishment Clause

Leah, Kate, and Melissa catch up on SCOTUS news (including more shadow docket activity and shady Thomas behavior) [1:04] and preview the cases the Supreme Court will hear in their last sitting of the term [35:54]. The justices will be going out with a bang, hearing cases about veteran benefits, Miranda warnings, immigration, and of course, religious liberty.

2022-04-18
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Justice on the Brink

Melissa interviews Linda Greenhouse about her new book, Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court. This conversation was originally a live, virtual event from the Brennen Center for Justice, produced in part­ner­ship with New York University?s John Brademas Center.

2022-04-11
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Light Conspiracy Theories

Leah and Kate catch up on all SCOTUS-related "antics" that happened in March-- including the latest in Ginni Thomas news [00:55], opinions [25:06], oral arguments [40:23], and non-Thomas-related news [52:56].

2022-04-04
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Backwards and in High Heels

Leah, Kate, and Melissa watched all the confirmation hearings for Judge Ketanji Brown Jackson-- so you don't have to. Here's our recap of the best, worst, and weirdest moments throughout four days of questioning.

2022-03-28
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Go Down Clutching the Constitution

Rebecca Nagle, host of This Land, joins Leah and Kate to discuss the issues at stake in Brackeen v. Haaland, a case challenging the Indian Child Welfare Act that the Supreme Court will hear next term.

Plus, Kate and Leah catch you up on the latest in SB8 news, an opinion written by Justice Kagan, and the cases the Supreme Court will hear in the next two weeks [20:54]. There's also more drama with Ginni Thomas [51:50], a judge trying to cancel student protestors [56:18], and a House hearing on workplace protections in the federal judiciary [1:01:53].

2022-03-21
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Living Textualism

Kate and Leah talk with Cary Franklin, the McDonald/Wright Chair of Law and Faculty Director of the Williams Institute at the UCLA School of Law, about her article "Living Textualism." The article is a broad critique of textualism, using the Supreme Court's 6-3 decision in Bostock v. Clayton County as a foundation.

2022-03-14
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Canon Wars

Rachel Rothschild, legal fellow at the Institute for Policy Integrity, joins Kate and Melissa to recap oral argument in West Virginia v. Environmental Protection Agency. They also recap cases about prescription drugs, tribal casinos, outpatient dialysis, and what happens when a state wants to enforce a law that's no longer in effect. Plus, there's more on KBJ's pending confirmation, Ginni Thomas's doings, and Sam Alito's... laugh?

2022-03-07
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Indian Law Hall of Fame

Leah recaps Denezpi v. United States, an important case about tribal sovereignty, with Matthew Fletcher (Michigan State University & Chief Justice of the Pokagon band of Potawatomi Indians Court of Appeals) & April Youpee-Roll (Munger Tolles & Olson), which may involve ? Neil Gorsuch?s heel turn in Indian law?!?

2022-03-03
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KBJ, All the Way!

Melissa, Kate, & Leah discuss the historic nomination of Judge Ketanji Brown Jackson ? KBJ, Yay! ? to the U.S. Supreme Court. Professor Lisa Fairfax (University of Pennsylvania, Carey School of Law) joins us to share some personal perspective on Judge Jackson after decades of friendship.

2022-02-28
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I Don't Wanna

Leah discusses the upcoming climate change case, West Virginia v. EPA, with Lisa Heinzerling and Kirti Datla (1:06). Slate's Mark Joseph Stern joins later to tee up a case the Court has granted for argument next term, 303 Creative v. Elenis, a case involving a graphic designer who doesn?t want to create websites for same-sex couples (49:48).

2022-02-26
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We're Doing S'mores

Leah, Kate, & Melissa run through a bunch of Court adjacent news-- including this Jane Mayer piece about Ginni Thomas-- before highlighting the big cases to watch in the February sitting.

2022-02-21
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Speedy Sonia

Leah's dreams come true with an episode all about a resentencing case, and the meaning of the First Step Act of 2018-- Concepcion v. United States. Tiffany Wright and Easha Anand join in.

2022-02-16
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Party Like It's 1935

Kate, Melissa, and Leah interview Professors Julian Davis Mortenson and Nick Bagley about the nondelegation doctrine

2022-02-14
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