We Need To Talk About Jurisdiction Stripping

Leah Litman (0:00)

Strict Scrutiny is brought to you by Americans United for Separation of Church and State. It's back to school season, and this year, five million children across Texas are going to be greeted by the Ten Commandments in their classrooms. Yes, you heard that right. Texas politicians passed a law requiring the Ten Commandments 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 they need you to amplify their voices, before the Supreme Court gets its hands on this case. And we all know what the Fifth Circuit did. Obviously, they let Texas get away with all of this.

They're going to go up, but we're going to fight to get them taken down.

That's 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 they tell in this video is moving, and we hope everyone hears and shares it. Look, there is a human cost of Christian nationalist policies like these 10 Commandments laws and the decisions of Supreme Court hands down. Every child deserves access to public education where they aren't subject to state imposed religion or religious instruction or coercion. Public education is supposed to be open and available to everyone. It's supposed to foster pluralism, not one specific religion.

Visit au.org/10c to learn more about this case and how you can help join the fight to protect Church-State separation. We talked a little bit about this case on our regular episode last week, but there's so much more to be said and to learn about the people who are fighting back.

SPEAKER_2 (1:42)

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

SPEAKER_3 (1:54)

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.

Leah Litman (2:25)

Hi, everyone. Welcome back to your Strict Scrutiny bonus series, Hot Scodus Reform September.

I am here with two guests to discuss two Scodus Reforms, had to sneak in some extras. They are both first-time Strict Scrutiny guests. One is Lev Menand. Lev is an associate professor of law at Columbia Law School. He is also the expert on the uniquely structured quasi-private entity that follows in the distinct historical tradition of the first and second banks of the United States. Yes, I'm talking about the Federal Reserve Board. Welcome to Strict Scrutiny, Lev.

Lev Menand (2:57)

Thank you.

Leah Litman (2:58)

The other guest today is Lina Khan. Lina is an associate professor of law at Columbia Law School and the former chair of the Federal Trade Commission from June 2021 to January 2025 Welcome to Strict Scrutiny, Lina.

Lina Khan (3:11)

Thanks for having me.

Leah Litman (3:12)

Consistent with the conceit of Hot Scotus Reform September, we're going to be talking about some specific Scotus Reforms on this episode and go through the standard questions we cover on all of these episodes, what the reform is, what it addresses, what are possible legal issues, possible variations on it, and whatnot. But this time, because we have two guests, we might be talking about two distinct sets of Scotus related forms, some that will touch on addressing the Supreme Court's authority to use statutory interpretation to mess with federal agencies, and the others reforming the dockets of the lower federal courts to minimize their ability, and by extension, the Supreme Court's ability to mess with federal agencies. Ready, Lev and Lina?

Lev Menand (3:51)

Great. Yes.

Leah Litman (3:53)

Okay.

So let's start with some of the more general questions. The first, and Lev will call on you for this one first, is what is one of your least favorite things about the Supreme Court?

Lev Menand (4:05)

I think the hagiography of the justice, which is related to the size of the court. The court is too small. One or two justices are too often determining outcomes of enormous consequence, and I think this really undermines legal legitimacy. It interferes with the ability of the legal system to promote social cohesion because we're associating particular legal decisions with personalities.

Justice Kennedy got us X, Justice Ginsburg got us Y, Justice Roberts saved Z, and this is inconsistent with rule of law ideas, and it's inconsistent with, I think, founding principles of the country, that we have a government of laws and not of men, of individual.