Debunking Trump’s Bullsh*t Legal Arguments for Invading Venezuela

Leah, Kate, and Melissa preview January’s major SCOTUS cases, including disputes over trans kids' participation in team sports, a concealed-carry ban in Hawaii, and Trump’s attempt to fire Federal Reserve Governor Lisa Cook. The hosts are then joined by Georgetown Law Professor Marty Lederman to break down the administration’s flimsy legal case for the regime-change operation in Venezuela, as well as the Court’s shadow docket ruling on the federalization and deployment of the National Guard in Chicago. Finally, some news: the horrific murder of Renee Good in Minneapolis, the Court’s opinion in an important habeas case, and an unhinged tweet from Trump’s Assistant Attorney General for Civil Rights. Favorite things: Leah: Jan Crawford’s attack on SCOTUS “corruption” narrative was its own substantive-free narrative https://www.lawdork.com/p/jan-crawfords-attack-on-scotus-corruption, Chris Geidner (Law Dork); The Year America Broke Open https://sherrilyn.substack.com/p/the-year-america-broke-open, Sherrilyn Ifill (Sherrilyn’s Newsletter); State v. Johnson https://documents.courts.state.wy.us/Opinions/S-24-0326%20State%20v.%20Johnson%20Final.pdf (Wyoming Supreme Court); Heated Rivalry https://bookshop.org/p/books/heated-rivalry-now-streaming-on-crave-and-hbo-max-rachel-reid/d865861eb560a9c3?ean=9781335534637&next=t by Rachel Reid and on HBO Max https://www.hbomax.com/shows/heated-rivalry/50cd4e99-04ee-427b-a3b4-da721ed05d9c (Game Changers series https://bookshop.org/p/books/game-changers-collection-male-male-sports-romance-stories-rachel-reid/c9f277df496c5b7a?ean=9780369700506&next=t); Rally for America's Workforce: PAWA to the People https://actionnetwork.org/events/rally-for-americas-workforce-pawa-to-the-people/ on Wednesday, 1/14/26 at 12:00pm at Upper Senate Park in DC Kate: Audition https://bookshop.org/p/books/audition-a-novel-katie-kitamura/90b09bc324cc7647?ean=9780593852323&next=t, Katie Kitamura; A Marriage at Sea: A True Story of Love, Obsession, and Shipwreck https://bookshop.org/p/books/a-marriage-at-sea-a-true-story-of-love-obsession-and-shipwreck-sophie-elmhirst/d8e3bde42254074f?ean=9780593854280&next=t, Sophie Elmhirst; The Wager: A Tale of Shipwreck, Mutiny and Murder https://bookshop.org/p/books/the-wager-a-tale-of-shipwreck-mutiny-and-murder-david-grann/b1f2a00fc56cba78?ean=9780307742490&next=t, David Grann; The Power Broker: Robert Moses and the Fall of New York https://bookshop.org/p/books/the-power-broker-robert-moses-and-the-fall-of-new-york-robert-a-caro/d422fb89e9efb810?ean=9780394720241&next=t, Robert Caro; FOTP Steve Vladeck’s Senate Judiciary Committee testimony https://www.judiciary.senate.gov/committee-activity/hearings/impeachment-holding-rogue-judges-accountable-01-07-2026 Melissa: The Heir Apparent https://bookshop.org/p/books/the-heir-apparent-rebecca-armitage/58109203abd14f80?ean=9781538776308&next=t, Rebecca Armitage; Tomorrow and Tomorrow and Tomorrow https://bookshop.org/p/books/tomorrow-and-tomorrow-and-tomorrow-gabrielle-zevin/2338d0ae999f188c?ean=9780593466490&next=t, Gabrielle Zevin; Ziwe’s interview with Vince Staples https://www.youtube.com/watch?v=3w07rZf8Lbw Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2026! 3/6/26 – San Francisco 3/7/26 – Los Angeles Learn more:http://crooked.com/events Buy Leah's book,Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes https://www.simonandschuster.com/books/Lawless/Leah-Litman/9781668054628 Follow us onInstagram https://www.instagram.com/strictscrutinypodcast/?hl=en,Threads https://www.threads.net/@strictscrutinypodcast, andBluesky https://bsky.app/profile/strictscrutiny.bsky.social Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 3/6/26 – San Francisco 3/7/26 – Los Angeles Learn more: http://crooked.com/events Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes https://www.simonandschuster.com/books/Lawless/Leah-Litman/9781668054628 Follow us on Instagram https://www.instagram.com/strictscrutinypodcast/?hl=en, Threads https://www.threads.net/@strictscrutinypodcast, and Bluesky https://bsky.app/profile/strictscrutiny.bsky.social

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:01Leah Litman?

  Strict Scrutiny is brought to you by Americans United for Separation of Church and State. We are all legal nerds here, and we know that precedent set in any area of the law ripples out across our lives in so many ways. Our right to religious freedom is one of the most sacred areas of the law, protecting almost every aspect of our daily lives. Rights we all hold dear, like LGBTQ rights, freedom to choose the type of healthcare you need, and ensuring a well-funded and inclusive public school system. Protecting the separation of church and state is, in fact, protecting the very foundation of our democracy. If you're looking for ways to more deeply understand the connection of and from religion to so many of the civil justice issues we see today, you should check out the Summit for Religious Freedom, or SERF, an annual conference held in Washington DC and virtually,

• 0:46Leah Litman?

  April 25th to the 27th, 2026. At SERF, advocates, organizers, faith leaders, atheists, and everyone in between come together to take on the growing threats of Christian nationalism and the efforts to impose one narrow religious belief on us all. This is a movement for big change and collaboration across the entire spectrum of religious beliefs and non-belief that strengthens our democracy, protects public schools, reproductive and LGBTQ rights, and more. Be part of the movement that's pushing back and standing up for freedom. Register to attend today at theSRF.org.

• 1:22Speaker 01

  CrookedCon is coming up right after the election, and we have just added a bunch more great names to the lineup. We got Governor JB Pritzker coming, Senator Chris Murphy, and then over from the House side, Ilhan Omar, Robert Garcia, Sarah Jacobs, Jamie Raskin, Sarah McBride. We also have Carlos Eduardo Esquina, Simone Sanders Townsend, Eugene Daniels, David Pakman, Jessica Tarlov, Heather McGee, and then all the other people that we've announced on the website, plus more to come. Great list. Check out the full lineup and get tickets right now at crookedcon.com. We'd love to see you there. That's crookedcon.com.

• 1:54Speaker 02

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

• 2:05Speaker 03

  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."

• 2:37Leah Litman?

  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 Litman.

• 2:44Kate Shaw?

  I'm Kate Shaw.

• 2:45Melissa Murray?

  And I'm Melissa Murray. And this is your first regular episode of 2026, the new year. And here's what we have in store for you. First, we'll be previewing the cases the court will hear in its first sitting of 2026. And then we are going to chat about the array of legal news that happened over the last couple of weeks as the old year ended and the new year started. And we couldn't let any of this pass without actually remarking on it. So get ready for that. And for that part of our conversation, we are going to be joined by a very special guest.

• 3:20Kate Shaw?

  So stay tuned for that. But first, case previews. So the court has some major cases on its docket for its January sitting, and we're going to focus today on three of those. One is a pair of cases, West Virginia versus BPJ and Little versus He Cox, that are being argued on the same day. Both are challenges to state laws that forbid transgender girls and women from playing on girls and women's sports teams in public schools, which means that they functionally bar trans girls and women from playing school sports. Another major case the court will hear is Trump versus Cook. That's the case about whether the Supreme Court will allow Donald Trump to fire members of the Federal Reserve Board on manufactured and preposterous grounds that supposedly constitute cause for firing. And the third case we'll preview today is Wolford versus Lopez, a Second Amendment case.

• 4:04Kate Shaw?

  This one, a challenge to a Hawaii measure that presumptively prohibits concealed carry, that is, carrying concealed weapons, on property that is open to public access unless the property owner affirmatively gives permission for that open carry to happen.

• 4:17Leah Litman?

  So let's start with West Virginia versus BPJ and Little versus He Cox. These cases are about whether either the equal protection clause of the Constitution or Title IX, the federal law preventing sex discrimination in educational programs, prevents states from requiring trans girls and women to play on male sports teams. As a reminder, Justice Barrett completely gratuitously offered her view of at least the equal protection question in United States versus Scrumetti last term. In Scrumetti, the court upheld against a constitutional challenge, a ban on gender-affirming care for trans minors. The chief justice's majority insisted the law did not discriminate based on sex or gender identity, but merely regulated a medical procedure and medical treatment for minors,

• 5:01Leah Litman?

  even though the law said the word sex over and over and over, and the law banned treatment sought to address gender dysphoria, a condition that is bound up with gender identity and what it means to be transgender and differentiates people based on their sex assigned at birth, but whatever. Justice Barrett wrote a separate concurrence in which she weighed in to say that even if the law did discriminate on the basis of gender identity against trans people, she would be fine with it. That would be constitutional, too. And we all know where Sam Alito stands on this, based on his separate writing in the case, plus him just being Sam Alito, as would Clarence Thomas, the world's latest medical expert on gender dysphoria, who of course wrote in Scrumetti to criticize all of those people masquerading as experts on gender dysphoria.

• 5:43Kate Shaw?

  So Scrumetti, as Leah mentioned, was a constitutional equal protection case, and the court there concluded that the Tennessee law that banned gender-affirming care for trans kids did not discriminate, as Leah was saying, on the basis of sex. And because of that, the law was subject to only rational basis review, which the court found the law easily satisfied. Here, West Virginia, which is one of the defendants, actually seems to concede that the law does draw a distinction on the basis of sex. I mean, I'm not sure how it couldn't, but I guess more outlandish claims have been made, so credit for conceding the obvious. But nevertheless, and it says, "The law does distinguish on the basis of sex, but not gender identity." But after conceding that the law discriminates or distinguishes on the basis of sex, the

• 6:27Kate Shaw?

  state concedes that intermediate scrutiny would apply, which is, generally speaking, under Supreme Court doctrine, the way that laws that draw distinctions on the basis of sex get reviewed.

• 6:37Leah Litman?

  For now.

• 6:40Kate Shaw?

  I did set you up for that.

• 6:42Melissa Murray?

  For now. For, I don't know, anything could happen in this case, but let me just sort of lay out where West Virginia is. West Virginia says that it easily satisfies the requirements for intermediate scrutiny. And to be very clear, it is arguing that the intermediate scrutiny standard allows states to discriminate on the basis of sex when the sex-based classification is substantially related to an important governmental interest. And here, West Virginia argues that it has an important governmental interest in, quote, "ensuring fair and safe athletic opportunities for women." It also argues that the Fourth Circuit ratcheted up the requirements for intermediate scrutiny when that court heard this case on appeal from the district court.

• 7:24Melissa Murray?

  So, West Virginia knows the true meaning of intermediate scrutiny, the judges of the Fourth Circuit, not so much. Now, in making the case that it has discriminated on the basis of sex, but only in order to preserve fair and safe athletic opportunities for women, West Virginia maintains that, quote, "biological males outperform biological females in athletic competitions." It then goes on to say that, quote, "Acknowledging this difference isn't a stereotype or an overbroad generalization about the differences between men and women. Instead, it merely, quote, 'reflects biological reality.'" This is all to say that the briefs on behalf of the state in these cases are overflowing

• 8:06Melissa Murray?

  with biology, in addition to what I think is pretty explicit protectionism logic that seems to hearken back not to the current or extant sex equality jurisprudence that this court has offered since 1973 and forward, but rather goes back all the way to, I don't know, Mueller versus Oregon in 1908, when the Supreme Court essentially blessed sex-differentiated laws on the view that it was necessary to protect women from everything. And, again, because there are no new ideas, we should note that this kind of protectionist logic... That used to be in vogue in 1908 is now coming back in the form of a series of

• 8:47Melissa Murray?

  executive orders that this administration has promulgated that essentially repackage this protectionist logic for a modern day audience. And in case you think I'm just spouting here, I am, but I'm spouting from a paper that Kate and I recently wrote and that will be forthcoming in the Supreme Court Review. It's called Skirmeti and the looming sex equality realignment, or the coming. Is it coming or looming? I don't know.

• 9:12Kate Shaw?

  I think we went with coming.

• 9:13Melissa Murray?

  Either way, it's on the way.

• 9:15Kate Shaw?

  Maybe we should call it looming. It sounds more ominous.

• 9:17Melissa Murray?

  It does.

• 9:18Kate Shaw?

  It is. Okay. All right. Well, we'll think about that.

• 9:21Melissa Murray?

  Both the shift in the paper are forthcoming.

• 9:23Leah Litman?

  It also calls to mind Laura Loomer's "Arby in your pants," which, you know, is related to biology. So.

• 9:27Kate Shaw?

  I don't want anyone. I don't want to call that to mind for anyone, Leah. So maybe no, we should just stick with coming.

• 9:32Melissa Murray?

  Looming Loomer's misalignment, all of it.

• 9:34Kate Shaw?

  Oh, no, no. All right. All right.

• 9:36Leah Litman?

  Arby's in your pants.

• 9:37Kate Shaw?

  Focus people.

• 9:41Melissa Murray?

  Okay.

• 9:42Kate Shaw?

  Okay, that will be the sequel. But back to the cases pending before the court. So Melissa was just walking through the equal protection argument. And we should also say that just in the constitutional register, the plaintiffs also make a separate argument that discrimination on the basis of gender identity or transgender status also draws heightened scrutiny in addition to the laws at issue representing sex classifications that already, under existing doctrine, warrant heightened scrutiny. But that's the sort of the constitutional aspect of the cases. An important and distinct question, at least in BPJ, is whether these laws may violate Title IX, the prohibition on sex discrimination in education. So in the court's 2020 decision in Bostock versus Clayton County, the court said, listeners will probably recall, that Title VII, the prohibition on sex discrimination

• 10:26Kate Shaw?

  in employment, did prohibit discrimination on the basis of gender identity. That was in addition to sexual orientation, although that's not at issue here. Now, the two laws, Title VII at issue in Bostock, Title IX at issue here, are not worded identically. Title IX says, quote, "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance." Title VII, by contrast, says it is, quote, "unlawful," quote, "for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual because of such individual's sex in addition to other characteristics."

• 11:06Melissa Murray?

  All right, so this is all to say that these two laws are not identically worded, but the key phrases, "on the basis of sex" in Title IX and "because of sex" in Title VII are pretty close, right? So a key question in this case is, what is the majority of this court going to do about its Title VII decision in Bostock, which it basically disregarded in its disposition of Skirmeti? Now, of course, Skirmeti was a constitutional case, and these cases raise both statutory and constitutional issues, but that just means that the court can't simply ignore Bostock here. It will have to decide what it's going to do about Bostock as a relevant precedent, at least in the context of Title IX.

• 11:50Melissa Murray?

  Now, Justice Gorsuch authored Bostock, and the Chief Justice actually joined that opinion alongside the court's Democratic appointees. If Bostock controls, then the athletes in these cases could win on statutory grounds. But the court could also decide that there are enough textual differences between Title IX and Title VII that they don't actually line up, and Bostock isn't relevant. Or it could focus on the distinctions between the employment context on the one hand and the educational or athletic context on the other, and read Bostock out of the equation entirely for that reason. Listeners, you should also remember that in the oral argument in Skermetti,

• 12:30Melissa Murray?

  Justice Gorsuch, who ordinarily loves to weigh in on everything, was uncharacteristically silent. So all eyes, I think, again, will be on him and what he has to say about his decision in this context.

• 12:45Leah Litman?

  So it sounds from BPJ's brief, like West Virginia in this case, is taking a page from the Supreme Court's book and engaging in some pretty dodgy behavior. According to BPJ's lawyers, quote, "West Virginia's brief is built on disputed expert testimony, events that occurred after the summary judgment record closed, and documents that have never been disclosed in discovery or submitted to the courts below. None of these materials is properly before the court," end quote. Will the justices be concerned about this? We will see. It certainly didn't stop Justice Alito or Justice Thomas in Skermetti.

• 13:17Kate Shaw?

  No. I really was struck by how kind of front and center that alleged kind of litigation misconduct was in the BPJ brief. So I am very curious whether it's actually going to be surfaced in the oral argument. But sort of in addition to that, which is kind of ancillary to the substantive legal questions in the case, there are some genuine jurisdictional wrinkles here. So Lindsay Heacock, who is one of the challengers, actually sought to voluntarily dismiss her claims with prejudice against the defendants in the district court. That could mean her case is moot, although so far, the courts have not granted her request to dismiss her case. Now, why did she voluntarily seek to dismiss her claims? Well, she tried out for her colleges, NCAA cross-country, and track teams, but she actually didn't make either team, so she just participated in club soccer. But she also noted that her

• 14:02Kate Shaw?

  decision to voluntarily dismiss was prompted in part by personal challenges, including those arising from the public scrutiny that she has faced in this case. She is concerned about her ability to finish school and graduate amidst all the public interest in the case, and so she decided to permanently withdraw and refrain from playing any women's sports. If you're a parent and you have kids who play sports, like, that is just so heartbreaking. Or if you're somebody who has played a sport, like, this is pretty central to growth, development, socialization, like, you know, all kinds of life skill development for so many people.

• 14:32Leah Litman?

  Emotional well-being, mental well-being, physical well-being, like...

• 14:35Kate Shaw?

  So, yeah, the list goes on. So that is pretty devastating. And the court has deferred this question of whether to dismiss the case as moot. But I think it's at least possible that it will take that off-ramp, at least with respect to the Heacock's case.

• 14:48Melissa Murray?

  All right. So what are we watching for in this oral argument? So first up, I will be watching for Justice Gorsuch and Chief Justice Roberts. What are they going to do in this argument? I think that'll give us a lot of clues about where this is going. They're two really crucial votes. I'm also going to note, and again, I don't want to manifest anything, but it would not surprise me if at some point, one of the conservative justices or one of the advocates floated the possibility that compliance with Title IX actually requires discrimination against trans people. So watch for an inversion.

• 15:25Leah Litman?

  If Alito or Thomas doesn't float that or doesn't float it in a separate writing, I will honestly be surprised.

• 15:31Kate Shaw?

  Yeah.

• 15:32Melissa Murray?

  So remember, it's the anti anti discrimination law. We've got to worry about it, too.

• 15:37Leah Litman?

  Yeah.

• 15:37Melissa Murray?

  Okay.

• 15:37Kate Shaw?

  This is the you've come a long way, baby.

• 15:39Melissa Murray?

  Right. All right. So big case to watch for. Another case that the court will hear this week is Wolford versus Lopez, and it is a second amendment case. Get ready, ammo sexuals. It's time. Pew, pew, pew. Okay.

• 15:55Leah Litman?

  You're not watching this on YouTube. You're missing out.

• 16:01Melissa Murray?

  Listeners, as you know, in 2022, the Supreme Court radically refashioned the Second Amendment with its decision in New York State Rifle and Pistol Association versus Bruin. There, the court held that gun control measures infringing on the Second Amendment are legal only if the government can show they were consistent with this nation's tradition of firearm regulation, which the court seemed to suggest meant something like the state can only pass gun safety laws if they can also show that there had been some significant number of substantially similar gun control measures at the time the Second Amendment or maybe the Fourteenth Amendment were ratified. So in order to survive court scrutiny,

• 16:45Melissa Murray?

  gun control measures of today have to be pretty analogous to gun control measures from 1787 and 1868. So. That's a pretty nutty test. I'm just going to riff on that for a minute. Contemporary firearms look really different from the ones that they might have had in ye olde days, in the 1700s and the 1800s. Society also looks very different. I have a job as a law professor. I'm not picking cotton or anything. So perhaps it's not a surprise that gun control measures governing a vastly different society with different guns might be very different from the gun safety regulations that states might promulgate today.

• 17:28Kate Shaw?

  Sort of surprisingly, the Supreme Court, relatively quick on the heels of Bruin, seems to have a bit come around to the logic that Melissa was just sketching, which is it sort of seems to have realized that the test that it announced in Bruin was actually pretty insane. And it got cold feet when it came to actually applying that test and sort of sought to either roll it back or modify it somewhat in its decision in United States versus Rahimi. So in Rahimi, the court upheld a federal law prohibiting firearm possession by persons subject to certain sorts of domestic violence restraining orders, even though, believe it or not, there wasn't much law prohibiting domestic abusers from having guns at the time the Second or Fourteenth Amendments were ratified.

• 18:09Melissa Murray?

  Shocking.

• 18:10Kate Shaw?

  Possibly because women didn't have a voice in politics or anything else. But despite all that, which I think on the Bruin test's own terms should have doomed this federal law, it survived. So the court, again, walked to some degree Bruin back, although how much that case was a one-off and how much it was a real change to the Bruin test, I think very much remains to be seen.

• 18:31Melissa Murray?

  Well, to be clear, the defendant in Rahimi was not a very sympathetic guy, and that certainly helped in the court's disposition of this, I think. But coming back to Justice Thomas, I guess this is the part of the show where we need to talk about Justice Thomas and his separate writing. But Justice Thomas, listeners, you'll recall, was the author of Bruin, and he was the only dissenter in Rahimi. And he basically took his colleagues to the woodshed for their refusal to actually do the Second Amendment the way that they said they would in Bruin. So this may be an opportunity for Justice Thomas to get his fellow homosexuals back in line.

• 19:09Leah Litman?

  In Wolford, you know, this case, the court is going to decide, under whatever test they have determined can be derived from the mishmash of Bruin and Rahimi, whether it is constitutional for Hawaii to presumptively ban concealed carry on properties that are subject to public access, again, unless the owner of said property affirmatively authorizes concealed carry. The question is basically whether the Second Amendment potentially blows up property law and the right to exclude in addition to gun control law, because really, it comes down to whether the Second Amendment gives you some kind of immunity to enter onto property in violation of property law and property restrictions and, you know, the owner's preferences. And we know this court loves a good immunity.

• 19:51Melissa Murray?

  So again, I don't want to keep harping on the ammo sexuality here, but I think it is really relevant. And I'm really interested to see how this plays out in oral argument. So I want to propose for all the strikies out there in the podcasting universe, I think we should play a little drinking game during oral argument. Every time an advocate or one of the justices invokes racial justice as a reason to extend or expand the Second Amendment and give everyone a gun, I want you to take a drink.

• 20:22Leah Litman?

  My tolerance is not that high.

• 20:26Melissa Murray?

  The limit does not exist.

• 20:29Melissa Murray?

  All right, I won't even, I had others that you could drink, but like, maybe we'll just leave it with Rachel.

• 20:33Leah Litman?

  That one would do me in.

• 20:34Melissa Murray?

  Okay. Well, according to Leah, you will be sauced by noon, so clear your calendars. We're going to have a great time.

• 20:42Leah Litman?

  Don't these arguments start at seven on the, on the West Coast?

• 20:45Melissa Murray?

  Oh, yeah. Our West Coast strikies. That's when you then get online and buy your tickets for the Herbst Theater or the Palace Theater for our live show.

• 20:53Leah Litman?

  God, you were good, Melissa.

• 20:54Melissa Murray?

  So good.

• 20:57Leah Litman?

  Okay, but back to Hawaii. So obviously, they love expanding gun rights, but this, I think, even for them, is going to present a challenge. So, one, if they sided with the kind of Second Amendment absolutism here, they would be invalidating a default rule. The Hawaii law is not a prohibition. It simply establishes a presumption that the property owner ultimately decides whether to override. So there's a default rule always in the law, it has to be somewhere. And they would be announcing that the state cannot reflect a different set of policy preferences about where to locate a default rule.

• 21:32Kate Shaw?

  In the context of private property, where guns enter the equation. So that, I think, is going to be a challenge for them. And I also do think there are some genuine cross pressuring in that, as enthusiastic as they are about the Second Amendment, they are ostensibly also pretty protective of private property. And so to suggest that we want to remove from property owners the ability to actually decide if they want to allow or disallow people to open carry on their property against a default, that the property owners have to take some action in order to allow it, would be a pretty aggressive anti-private property move, I think, unless you think private property rights only get respected where they align with expansive Second Amendment rights, which might be how they square this circle.

• 22:12Melissa Murray?

  Yeah, I'm going to watch to see how the conservatives basically rip themselves apart, just tie themselves in knots trying to figure out this little conundrum.

• 22:18Leah Litman?

  We saw how difficult it was for them to criticize Justice Scalia and try to do law. It's really hard for them to walk and chew gum.

• 22:26Kate Shaw?

  Totally.

• 22:28Melissa Murray?

  Well, speaking of things that conservatives typically favor, let's also talk about the federalism here that may be falling by the wayside as well. Again, Hawaii has made a pretty express preference here for this presumptive rule. As Kate says, it's just a default, it's not a prohibition. And in a related case, Hawaii versus Wilson, the Hawaii Supreme Court upheld the state's may-issue concealed carry permitting regime, asserting that, quote, "the spirit of aloha and unique state traditions overrode any Second Amendment mandates" here. That case was appealed to the Supreme Court. The court denied certiorari there, but obviously the same issue persists.

• 23:10Melissa Murray?

  And I think we're going to hear a lot about the spirit of aloha and federalism in this case. And we're going to find out if amosexuality or the spirit of aloha will prevail. One or the other, cannot be both.

• 23:23Leah Litman?

  So the third case we wanted to preview more extensively was Trump versus Cook, which is the case about whether Trump can fire Federal Reserve Governor Lisa Cook. This case requires a bit of background on how the Supreme Court has refashioned the law of removal, presidential removal, and also the procedural posture of this particular case. So as we had to recount when recapping last month's oral argument in Trump versus Slaughter, in all of its painful stupidity and overconfidence, the Supreme Court, on the shadow docket, has given the law of presidential removal something of a makeover.

• 23:56Melissa Murray?

  Well, let's back up, though. Before the court did its extreme makeover of the removal doctrine, there was a nearly century-old precedent, Humphrey's executor, which we've talked about before, that said that Congress could limit the president's power to remove the heads of multi-member commissions. And the limit was basically that the president could only remove someone if there was cause to do so. Now, the court has never decided what the exact meaning of cause is. I think we're going to get into that in this particular case. But it's basically been understood to prevent the president from firing officers over policy or substantive disagreements. It's supposed to limit the president to removing people only in circumstances where

• 24:39Melissa Murray?

  those officials have neglected their duties or engaged in actual malfeasance.

• 24:44Kate Shaw?

  So last spring, the Supreme Court on the shadow docket said that notwithstanding all of the many laws creating independent agencies and notwithstanding Supreme Court precedent upholding the laws establishing those independent agencies, actually, the president likely can fire the heads of multi-member commissions, at least until we, that is the Supreme Court, get around to actually overruling our precedent to the contrary. So the court's reasoning, such as it was in the shadow docket order, was that the president possesses the executive power and therefore needs to be able to control all persons who exercise significant executive authority, which basically all commissions and agencies do. So the court allowed the president to fire commissioners of the National Labor Relations Board, the Merit Systems Protection Board, and subsequently the Consumer Product Safety Commission and the Federal Trade Commission.

• 25:29Melissa Murray?

  So basically, all agencies and commissions, except the court maintained the Federal Reserve Board in a cursory. What's that I hear? Right. Is it the sound of investment accounts increasing? I'm sorry, what's going on?

• 25:42Kate Shaw?

  Like a ching-ching, should we have a cash register sound effect?

• 25:48Leah Litman?

  So in a cursory passage in that Chatterdocket Order, the court suggested that Congress could restrict the president's power to remove Federal Reserve governors only to cases where the president has cause for the removal because the court infamously said, quote, "The Federal Reserve is a uniquely structured quasi-private entity that follows in the distinct historical tradition of the first and second banks of the United States."

• 26:11Melissa Murray?

  Basically, the court said, "Dracaris, fire all of them except the governors of the Federal Reserve Board because the economy and 401Ks." And so Donald Trump, Donald the Dove, who always follows what the court says, decided to go ahead and fire a governor of the Federal Reserve Board. But, to be very clear, he said he had cause to do so. He purported to fire Governor Lisa Cook, the first black woman appointed to the Fed, on the grounds generated by Bill Pulte that she had engaged in mortgage fraud. The claim is that Cook misrepresented that homes she had purchased would be her primary

• 26:56Melissa Murray?

  residence when, in fact, they would not be. And I think they were referring specifically to a property in Atlanta. So this is basically part of the whole mortgage fraud fraud that this regime has periodically been engaged in. We've seen this lodged against Letitia James, for example, that was kind of thrown out and dismissed. And just a reminder, ProPublica has reported that many, many people in the Trump administration have also allegedly represented that homes that they have purchased that they said would be their primary residence are, in fact, not their primary residence. So, I mean, I guess you should focus on the mortgage fraud because you're doing it.

• 27:38Leah Litman?

  Allegedly.

• 27:38Kate Shaw?

  Those are friends of the president, Melissa, and therefore it's fine. That's called law.

• 27:43Leah Litman?

  Or vibes.

• 27:44Kate Shaw?

  Right. So, on the basis of this alleged mortgage fraud, Trump fired Cook, saying that this conduct constituted cause, and Cook challenged her removal. So a district court found that the removal was illegal and said that Cook could continue to serve as a governor. The court reasoned that the statute only allowed the president to fire people for cause that arose after an individual had been confirmed, that is, for actions taken while in office. Because these alleged representations, misrepresentations, you know, again, that Polty has apparently allegedly unearthed, were made before becoming a Fed governor, that did not qualify as cause. The court also concluded that Cook's firing did not comport with the constitutional requirements for the process that is owed before a removal like this occurs. She was not provided with notice or an opportunity to

• 28:28Kate Shaw?

  challenge or dispute the allegations against her.

• 28:31Leah Litman?

  The government, as it is wont to do, rushed off to Daddy SCOTUS and asked the court to stay the order blocking Cook's removal. The Supreme Court declined to act on the application, that is, it didn't make a decision one way or another, and instead scheduled the application for oral argument. So in this case, the court is technically hearing argument on whether to grant the government a stay. This is the same posture as the birthright citizenship matter. The court decided last year it was on the government's application to stay the injunctions because the government said the lower court didn't have authority to issue nationwide injunctions. The stakes of Cook's case should be clear. If the president can just trump up and invent cause, then he's not actually limited in his ability to fire members of the Fed because he can just insist there is

• 29:16Leah Litman?

  cause. And if he gets to decide what cause is, and courts aren't going to subject that to meaningful scrutiny, there goes the independence of the Fed. That sound you hear in addition to investment accounts, ka-ching, is the possible collapse of the global economic order and 1929 making a comeback, by which I mean the Great Depression.

• 29:36Kate Shaw?

  And actually, even the Chamber of Commerce seems to get this. So although the Chamber technically submitted a brief in support of neither party, the brief does take the position that courts can review whether a president has cause, and also takes the position that Congress has the authority to insulate monetary policy from the president. So just a couple of other quick observations before we leave this case. So first, this is Trump picking a totally unnecessary fight, which I guess like means it's a Friday. But I mean, he has lots of other ways to influence the Fed. Every president does. Fed independence is a construct, and it's real, but it is far from absolute. So he is already very empowered to influence the direction of the Fed and monetary policy without firing people, without any kind of precedent and on these manufactured bases.

• 30:20Kate Shaw?

  So that, I think, is kind of one reason this is a completely manufactured and unnecessary fight that he's picking. And two, he already has other-- so Powell is gone in May anyway as chair. He's got a couple more years on his term. There's at least one other vacancy coming up. Some people leave early. Like, he is already reshaping the actual personnel on the Fed. This does feel like this is about Trump both wanting to take it to the one black woman on the Fed and also trying to invite SCOTUS to confirm his claim, made to the Times this week, that the only limits on the president's power are those that emanate from his own morality. So we'll see what the court does. And let me just maybe say one more thing, which is that it may be that we learned something

• 31:02Kate Shaw?

  about the meaning, so far really unelaborated by courts, of cause in statutes, right? If we're talking about these removal protections. But I also think that there are ways for Trump to lose this case that aren't about the court deciding that, you know, it's going to define cause and find that this didn't constitute cause. And I mean, I think the most obvious way is that just to find that she was denied some constitutionally adequate procedures, and it might not even say what those procedures were, but that they weren't satisfied here. So I do think there are some off-ramps here that will allow the court to kind of avoid an ultimate confrontation with the president and his motives, but, you know, maybe preserve a degree of independence for the Fed.

• 31:38Melissa Murray?

  So this case is basically going to force the court to determine who it likes more. Do they like Donald Trump more than they like their emotional support billionaires? Do they like Donald Trump more than they like their own legitimacy? Is this going to be basically a reprisal of the tariffs argument in the tariffs case, where not only was the court faced with the same cross pressures, they also were in a position to burnish their own laurels and look a little bit independent after giving this administration so many wins, so many disastrous wins? And this could be another one of those situations where they support their emotional support billionaires and the economy, and in the process, deal this administration a loss

• 32:22Melissa Murray?

  while burnishing their own legacy. So don't take the bait, folks. Still the same court, even if they occasionally say no to this president. Anyway, just as a quick FYI, the court is also going to hear some other cases in January. So let's tick through them. One is Chevron USA versus Plaquemines Parish, Louisiana. And I did look that up, so don't jump in these mentions. So no, SCOTUS is not considering whether to bring back Chevron deference. This case is about whether a case involves a federal officer, such that a case filed against the individual or entity who is supposedly a federal officer can then be removed to

• 33:05Melissa Murray?

  federal court if it was first filed in state court. This specific case involves a federal contractor involved in oil refining and whether that contractor qualifies as a federal officer. Professor Percy at Old Miss has a forthcoming article in the Cardoza Law Review on this issue. The article is titled Chevron USA, Inc. versus Plaquemines Parish. Did the Removal Clarification Act of 2011 abrogate the causal nexus requirement for removal pursuant to 28 U.S.C. Section 1442, the federal officer's removal statute?

• 33:35Kate Shaw?

  Okay, just a couple of others to quickly mention. The court will also hear Gillette versus New Jersey Transit Corporation about whether the New Jersey Transit Corp. is an arm of the state of New Jersey for immunity purposes. And finally is M&K Employee Solutions versus Trustees of the IAM National Pension Fund, which is about federal law on pension plans and specifically how to calculate an employer's liability when an employer withdraws from a pension plan funded by multiple employers.

• 34:01Leah Litman?

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• 35:29Leah Litman?

  shipping when you head to smalls.com/strict. One last time, that's 60% off your first order plus free shipping when you head to smalls.com/strict. This episode is sponsored by BetterHelp. It's a new year, but that doesn't require a new you. We're still the same podcast after all, and these guys are still the same Supreme Court. Don't let anybody tell you otherwise. But maybe the new year could mean a less burdened you, so you can cope, at least for the time being, with the court we have. Therapy can help more easily identify what weighs you down and holds you back by offering an unbiased perspective. They're still pretty sure Sam Alito is the problem. More seriously, therapy offers an unbiased perspective to Better understand your relationships, motivations and emotions.

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• 37:29Leah Litman?

  Let's turn now to some legal news we wanted to discuss. We were away for a while, but it doesn't mean we don't have thoughts on what happened during that time. And for some of this segment, we are delighted to be joined by a very special guest.

• 37:39Melissa Murray?

  So listeners, in our last episode, Leah and Beck Engberg discussed the president's unlawful invasion of Venezuela and the anticipated regime change that is likely to take place in that country. Since then, we've received more information about the administration's claimed legal authority for the strike, the rendition in the prosecution of Maduro and his co-defendants. None of these explanations is any better than the initial hand waving to which we were subjected, but we did want to bring you up to speed on these new developments.

• 38:09Leah Litman?

  And to help us do this, we are delighted to be joined by Marty Lederman, Professor of Practice at Georgetown Law. Marty has also served in DOJ's Office of Legal Counsel, including as the Deputy Assistant Attorney General. And if you're wondering, Marty Lederman, why do I know that name? He is, among other things, the guy who came up with the theory that the Supreme Court used to shut down Trump's request to use the National Guard, which we'll also discuss. Welcome to the show, Marty.

• 38:33Speaker 06

  Thanks. It's a real privilege and honor. Thrilled to be with you guys.

• 38:37Kate Shaw?

  Well, we're super excited to have you. And as Leah mentioned, we are definitely going to talk about the National Guard. But we do want to start by covering Venezuela for a few minutes. And we should say, we don't yet know the full claimed legal basis the administration is offering or will offer. They haven't told us. But it does seem that the administration may be relying in part on a 1989 memo from the first Bush administration's Office of Legal Counsel that sought to provide a legal basis for the first Bush administration's entry into Panama and the arrest, rendition, and prosecution of General Manuel Noriega. The memo was written by, wait for it, Bill Barr, then head of OLC. He would, of course, go on to serve as Attorney General under both the first Bush administration and the

• 39:19Kate Shaw?

  first Trump administration. Just as an aside, it really is amazing how few new villains and new ideas are out there. It is just a lot of the same recycled, dramatis personae and schlock.

• 39:31Leah Litman?

  And if you're wondering about the consequences of failing to hold people accountable when they participate in coups and unlawful wars, this would also be an example of that. Because once they're done cooing and justifying the coup, these folks don't just slink back away into their hidey holes. They become Attorney General of the United States.

• 39:46Kate Shaw?

  So on Barr's OLC memo, there are a number of, we think, pretty dubious claims in that memo. Marty, can you just briefly talk us through, sort of, what is the legal justification for the conclusion in that memo?

• 40:00Speaker 06

  The memo was largely about, there was an earlier OLC memorandum from 1980 suggesting that although maybe you could construe the FBI's general authorities to allow it to engage in this kind of extraterritorial abduction, it would mean violating customary international law and the United Nations Charter, a provision of the Charter that prohibits all parties to the treaty from using force other than in very discreet circumstances not present here, like when the host country consents or when you have a valid self-defense claim. And the 1980 memo had held that the president is not empowered, absent Congress

• 40:41Speaker 06

  giving the authority, that the president and the president's agencies, like the FBI, are not empowered to violate customary international law or a treaty obligation like the one in the UN Charter.

• 40:53Leah Litman?

  Well, so OLC concluded in 1980, but of course, in 89, the OLC says something quite different.

• 40:58Speaker 06

  So in 1989, I'm not going to get into the details about the statutory interpretation, but thought that the FBI's statutory authorities could govern this, famously held that the president is not bound by customary international law. There's a longstanding debate about that question. But what about a treaty of the United States, which is just clearly the supreme law of the land? And these FBI snatches would breach the Charter, would put the United States in breach of a valid treaty obligation. And Barr concluded in very cursory fashion that because Article 2.4 of the treaty is, in some respects, what people

• 41:41Speaker 06

  have called non-self-executing, which is traditionally mostly meant that it's not enforceable in court, it doesn't create legally enforceable rights of individuals that they can go to court to challenge, that therefore, as a matter of US domestic law, it doesn't bind the president, right? The United States is bound to enforce it as a whole, but the political branches are both free to disregard it as a matter of the Constitution.

• 42:08Leah Litman?

  I didn't realize the supremacy clause said, except for the president or Congress, and who's bound by federal law, but did I miss something?

• 42:17Speaker 06

  So they would say it's binding, but the theory, and this is why it's a little bit confusing, Leah, is the theory was that the treaty itself, or, and this is vague in the opinion, or the ratification of the treaty by the president and the Senate, did not, it's binding, but it doesn't create binding law itself. Imagine a treaty provision that is merely aspirational, that doesn't impose an absolute requirement. There, it's easy to see, right? We're just required to do what we can to secure certain objectives. Well, that doesn't create any binding government. But here, it's just a prohibition. Thou shalt not use force against the territorial integrity of another state, full stop.

• 43:02Speaker 06

  And that clearly, it seems to me, was a mistake. But it's one that I think has taken hold.

• 43:10Melissa Murray?

  Well, so Marty, can I jump in there?

• 43:12Speaker 06

  Sure.

• 43:12Melissa Murray?

  If this memo is a mistake or rests on mistaken ground, what is the obligation of future administrations, future OLCs to adhere to it? I mean, can you give our readers a sense of how to weigh the precedental impact of these kinds of memos, especially one that may be in error?

• 43:32Speaker 06

  So that's a really rich and difficult question, Melissa. OLC, like courts, is very reluctant to overrule its precedents, and it has an internal stare decisis doctrine.

• 43:45Melissa Murray?

  How novel.

• 43:46Speaker 06

  It's not very well established. And there aren't, haven't, until recent years, there weren't a lot of cases where the issue really came up, like what the standards are for overruling an opinion. I don't know that anyone in the executive branch has ever asked OLC to revisit the conclusions of the bar memorandum. And that's one of the problems. OLC is a reactive entity, and it won't, if no one's asking, it won't revisit it.

• 44:12Melissa Murray?

  Consider this my official request, OLC, to revisit the bar memo.

• 44:16Speaker 06

  Yes, OLC does not give legal advice to Congress or to members of the public, but only within the executive branch.

• 44:26Melissa Murray?

  This executive branch is just a bunch of podcasters. So, seems like it should work.

• 44:31Leah Litman?

  But not lady podcasters, so there you are.

• 44:33Speaker 06

  Yes, well, there's a classified memorandum about lady podcasters. But I'm not really permitted to talk about that one, so.

• 44:41Melissa Murray?

  Hard meat Dillon Commission.

• 44:44Melissa Murray?

  After calling them hoes.

• 44:46Leah Litman?

  Hoes.

• 44:46Melissa Murray?

  So, sorry, Marty.

• 44:49Speaker 06

  So it does, in recent years, it's happened a lot. And in fact, the Trump administration, both in the Trump first term and in this last year, their OLC is just overruling former OLC opinions left and right. And I don't mean to make, mean that as an absolute as a criticism, although I disagree with the substance of many of those opinions. It does happen. I've written and signed and certainly worked on opinions where we've overruled things. Some of the torture opinions have been formally withdrawn, you know, that you don't need to overrule them if you're just saying they don't represent the law. And I doubt that's happened here. And maybe it's because it's not clear to me. That the bar memorandum has had to been used in the last 30 plus years.

• 45:31Speaker 06

  Right. It's not like it's been invoked left, right and sideways all the time. There are hard questions about authorities involving the Central Intelligence Agency, but those get into a bunch of different statutory questions and what Congress has authorized in terms of covert action and the like.

• 45:47Melissa Murray?

  So maybe going to like some of the other memos and other questions, like in addition to the bar memo, it does seem like they are cobbling together different excerpts from not just that memo, but oh, I'll see memos on other uses of force and, you know, suggesting like add it up altogether, right? Take a little bit from this one and that one and then poof, it means Venezuela.

• 46:07Speaker 06

  Yeah. And I think that's, that's really, I think, the larger problem here, just in terms of evaluating this, right? This is, the bar memorandum does not say, oh, and by the way, when the FBI goes into another country to arrest someone extraterritorially, the Department of Defense can engage in a full scale action to disable that nation's air force at the cost of dozens of lives. And thereafter, you can basically coerce that nation, either run the country, as President Trump has been saying, or at the very least have used threatened military force that's present in the area to get that country to do your bidding, or to conquer Greenland, or something like that. So it takes much

• 46:48Speaker 06

  more than the bar memorandum. The bar memorandum is just the, the piece about disregarding the UN Charter.

• 46:54Melissa Murray?

  Wait, so this is basically a Franken memo of like all the use of force in every memo that possibly would allow it cobble together to make some kind of use of force monster that now will justify these actions in Venezuela and possible actions in Greenland. And Greenland and Cuba and Colombia. Does anyone know how, did anyone read Frankenstein? Did anyone?

• 47:17Speaker 06

  No, I've heard Jacob Elordi is actually quite good in the movie, but I haven't seen it. He is. So it's partly that, but in fairness, there's a bunch of memoranda about the use of the military and when the president can act without congressional authorization.

• 47:35Speaker 06

  And then other cases such as the US's engagement in, you know, in air campaign in Kosovo and the Clinton administration and the first Trump administration's attack on Syria to get rid of its chemical weapons that have been very far reaching, that I think are very questionable, in part because they are such clear breaches of the UN Charter. So there have been, you know, there's been an accretion of, it's sort of like, there's been an accretion of cases, any one of which might be justifiable on its own terms, but when you bring them all together, they sort of create the parade of horribles, the hypo that a good internal executive branch lawyer is supposed to raise at the time. Like, if

• 48:16Speaker 06

  we approve this, do you know that it would mean, if we just wrote it that way, you'd be able to just conquer Greenland at no cost? And that's absurd, and so that can't be right.

• 48:27Kate Shaw?

  Right, but here, this is, maybe this is a feature, not a bug, that their justification actually will authorize much bigger.

• 48:34Speaker 06

  They think this is a feature.

• 48:35Leah Litman?

  I just want to underscore one thing Marty said, which is, like, whatever the bar memo and all of these other memos do or don't authorize, like, it certainly doesn't provide authority to run a foreign country or coerce it, right? As little Marco Rubio said, you know, there are different accounts of what the United States is doing, because the executive, it turns out, is not so unitary after all. And also, the idea that, like, they are running a foreign country undermines the justification that it is just domestic law enforcement. And their current posture toward Venezuela also debunks, like, the ostensibly public-minded reasons for ousting Maduro in any case, since they're basically fine with leaving most of the regime intact.

• 49:08Kate Shaw?

  And I think that shifting, not from just talking about the kind of legal justifications such as they are for the original apprehension, but what has happened since and what we might be facing coming down the pike. I mean, we are already hearing the president seeming to use the invasion occupation to justify other kinds of pretty gross defiance of the constitutional system. So we're hearing reports of a seizure of an oil tanker headed for Russia, plans to put the money from the oil in offshore accounts that the president will apparently be in control of. I mean, absolute lunacy.

• 49:42Kate Shaw?

  Allowing the president, like in plain view, to create a separate funding stream by seizing tankers and engaging in essentially mob-style governance to evade the constitutional limits on the president's authority is really what we are talking about. There's also the president's announcement via Truth Social that the interim authorities in Venezuela are turning over tens of millions of barrels of oil that would be sold. And again, those proceeds would be controlled by the president personally. I guess, I don't know, Marty, question mark, like whatever justifications you are stretching to understand with respect to the original ostensible law enforcement operation conducted by the military, none of that, I gather, comes close to justifying anything that we have heard about since or might be facing coming down the pike. Is that basically right?

• 50:27Speaker 06

  I think that's right, Kate. And I think the way you've put it has sort of highlighted what I see as the two principal legal concerns, apart from the broadest one, which is they seem fairly indifferent to the law, right? I mean, I don't know how much lawyers are right.

• 50:41Kate Shaw?

  Oh, oh, this just in on that. This just in from J.D. Vance. Let's play his hot take.

• 50:46Speaker 07

  The president, I believe himself, has already said, every president, Democrat or Republican, believes the War Powers Act is fundamentally a fake and unconstitutional law.

• 50:55Kate Shaw?

  Coming from someone who was really nowhere to be seen during the operation, you know, of the invasion of Venezuela and then announcing the subsequent running and/or coercing of Venezuela.

• 51:06Speaker 06

  I think the two things that strike me as sort of the Frankenstein, as Melissa put it, together, there's several different strands, but the two important ones are, one, everyone agrees, and the Trump administration does not disagree, that this breaches the U.N. Charter. And what was really striking was the U.S.'s presentation in the Security Council the other day. There was not the slightest effort at making a legal justification for this. I mean, the most shocking thing about it is what was not said, which was there was, the whole meeting is about the U.S. has probably breached the Charter, and the U.N. representative from the United States said not a word about it. But the main thing that I wanted to focus on is what is the affirmative authority for this?

• 51:49Speaker 06

  It's hard to point to restrictions in the Constitution or in a statute or apart from the Charter, in a treaty that prevents all this from happening. They are being very, very aggressive about finding so-called inherent authority to do virtually anything the president wants, once Congress has given the president armed forces, right? Like to do anything around the world. And I think that's really the larger problem is this idea that until Congress passes a statute to restrict what you're doing, you can do anything you want with the armed forces.

• 52:24Kate Shaw?

  All right. So let's leave it there and turn now to the court's big shadow docket decision in the National Guard case, Trump versus Illinois, which was announced on December 23rd. Kind of a lump of coal in the administration's stocking just before Christmas, although, you know, knowing how much this administration loves coal, I was thinking maybe we need a new metaphor. Maybe it was a wind turbine in their stocking. But also, as we'll talk about, obviously, this is maybe somewhat more-

• 52:47Melissa Murray?

  A solar panel.

• 52:48Kate Shaw?

  I thought about that, too.

• 52:49Melissa Murray?

  An electric vehicle.

• 52:50Kate Shaw?

  A little mini one.

• 52:53Melissa Murray?

  A lady podcaster. Exactly.

• 52:55Kate Shaw?

  In their stocking. The most fearsome, much scarier than any of the renewables. In any event, what we were talking about, dear listeners, is the Supreme Court, by a vote of six to three on the eve of Christmas Eve, denied the government's request to stay a lower court order that had blocked the president's federalization and deployment of the National Guard in Chicago. Although this happened in the Chicago case, it seems quite clear that the court's reasoning applies to the federalization and deployment of the National Guard elsewhere. So that's Portland, Los Angeles, Memphis, and anywhere else the president might decide to turn his attention.

• 53:30Melissa Murray?

  And the court adopted the argument advanced by now official mensch of the pod, Marty Lederman. So under the relevant statute 12406, the president can only federalize the guard in three situations, including where, quote, "regular forces are insufficient to execute United States laws." So the administration maintains that in referencing, quote, "regular forces," the statute contemplated federal law enforcement officials, like DHS officials and ICE officials. But according to Marty Lederman, that interpretation is actually incorrect.

• 54:01Melissa Murray?

  As Marty argued in an amicus brief, the statute actually contemplates an entirely different meaning for the term "regular forces." According to Marty, the statute contemplates "regular forces" to mean the US military or the US armed forces. Accordingly, unless the military itself is unable to enforce federal law, which presumes that the military is able lawfully to enforce federal law, a big question, then there would be no basis for the president to federalize the guard over the objections of the guard's state governors. So Marty, what prompted you to start digging into this particular question about the meaning of these statutory terms? And how did you come to the conclusion that the statute in referencing "regular forces" meant to reference the US military?

• 54:46Speaker 06

  So the true story is, back in June, I guess, when the president first used the National Guard in Los Angeles, they invoked this statute. From my time in OLC and my time as a scholar, I've done a little bit of work on the insurrection acts, which are the ones that are usually used by a president to call in force either the National Guard, the militia, or the regular forces, the ordinary army, in various contexts throughout our national history. I want to pause to say, and then we can come back to this, that in the vast majority of those cases, it's at the invitation of the state. The state is unable to quell violence that has arisen and the governor asks the president for help, as in the Rodney King case

• 55:31Speaker 06

  or the Detroit riot in 1967, which I remember vividly. I was there as a young boy. There are very, very few cases in which the president has used military forces on domestic soil against the wishes of the local authorities and the governor. The last time, the famous times, are 1957 in Little Rock, 1964 in Alabama, where the governors were basically in cahoots with the persons committing private violence and were resisting the application of federal law. So here, they they pull out this statute I'd never heard of, 12406, and no one had really ever considered, had never been used before, really, as a standalone, as a justification for a deployment of the military, let alone in these circumstances. And I found that

• 56:16Speaker 06

  very strange. Why weren't they invoking the Insurrection Act, or a so-called constitutional protective power, which has sometimes been invoked, but very rarely? Why did they turn to the statute no one's ever heard of? And I looked at the statute, and it's enacted for the first time in 1903. It's called the Dick Act, because Representative Dick was the principal sponsor. And then this language was amended and added in 1908. I'm like, wait a minute. You know, there were no ICE forces in 1908. That can't be what Congress had in mind. And maybe it's just the OLC lawyer in me. But the first question I would always ask is, what is this statute about? What was Congress doing? Why isn't anyone

• 56:59Speaker 06

  talking about where this statute came from, how it's been used in the past? It uses a phrase that's very unusual, right? First of all, that the president be unable with the regular forces to implement, to execute federal law. That doesn't appear in any of the other statutes. Where did that come from? What did they mean by unable? What did they mean by the regular forces? And I asked some friends, friends of ours, friends of the pod, who who have also done some work on the Insurrection Act history, like, what do you guys know about this? So I thought, OK, this is a great answer to the question that students are always asking us. Do you have a topic that I can write a paper on? Right? It's like, yeah, go figure out what this 1908 statute meant. This is great. And

• 57:42Speaker 06

  I just kind of let it sit. And in the subsequent months, all the parties, the federal government and the state governments, and all their amici, and all of these federal judges in California, and in Oregon, and in Illinois. Are going, first of all, they all come up with a test for what it means to be unable to execute federal law that the Ninth Circuit comes up with. It's a very reasonable test, but it's kind of pulled out of thin air, which is like significant impediment on your ability to enforce the law. And then they apply it to, in excruciating detail, to the facts on the ground in Portland, in LA, in Chicago, and decide whether President Trump was reasonably decided that he couldn't

• 58:25Speaker 06

  enforce the law, that he was unable to, that there was significant impediments in these cities. And the judges in the lower courts were understandably very, very dubious about the president's determination there, because this seemed like the ordinary violence one gets with protests all the time, without bringing in the military, any form of the military. And so finally, the SG applies in whatever month it was, October, late September, October, applies for a stay in the Supreme Court, and still no one's dealing with this, except the district court judge in Chicago. To her credit, she at least did a couple paragraphs on it. And I'm like, oh, this is crazy. They're just, they're asking the court to resolve questions that don't really, as far

• 59:10Speaker 06

  as I can tell, are not what the statute is about. And, and this is the important point, I think you guys would probably all agree, these are questions that I'm sure most of the justices were not eager to answer. Both the, both the legal question of what does Congress mean by unable to, it's kind of a hard question, and also about question, you know, how rigorous should the judiciary be at second guessing a presidential determination that a statutory standard is met? A deep question that's at issue in the Enemy Aliens Act, in the Tariff Act cases, in the Lisa Cook case, in all of these cases, the justices hardly want to say, we're going to say that Donald Trump's determinations are unreasonable.

• 59:53Speaker 06

  And they also don't want to rubber stamp those determinations, because most people agree that they're pretextual, and that they're, you know, like the lower courts did here. So I don't think they relished this this application from the SG. I'm sure they were looking for what? For an off-ramp.

• 1:00:09Leah Litman?

  Yeah, and you you gave them.

• 1:00:10Speaker 06

  And it turns out there was, and it turns out there was a good one. Like the, so, so it was a combination of those two things. It was, it was a case in which the justices were were amenable to an off-ramp, to a different statutory interpretation. And it turns out, just fortuitously, that that was clearly the right interpretation. Which, by the way, you know, I'd like to take credit for this. But I think if any lawyer had dug down, you would have figured out quite quickly that this was the correct interpretation. And notably, none of the justices takes issue with it.

• 1:00:42Leah Litman?

  So in Trump versus Illinois, the court's ultimate decision, they said the term "regular forces" likely refers to the regular forces of the US military. And that means the president had to be unable with the regular military to execute the laws of the US, which of course presumes and applies, according to the Supreme Court, quote, "only where the military could legally execute the laws," end quote. So the court didn't do what they didn't want to do, call a Republican president a liar, but they did take the off-ramp that you gave them.

• 1:01:09Kate Shaw?

  Okay, Marty, so you sort of spot this pretty obvious omission. Can you just briefly tell us how you then end up in the position of producing this brief that ends up being so enormously consequential in the Supreme Court litigation?

• 1:01:23Speaker 06

  So I'm a bit of an obsessive.

• 1:01:26Kate Shaw?

  And we love that.

• 1:01:27Speaker 06

  You know, that old cartoon about like, "Come to bed, it's 3 o'clock. I can't, there's someone saying something wrong on the internet." Okay, well, there was a lot of people saying something wrong in the Supreme Court. And Justice Barrett gave the parties three days to file briefs in response to the.

• 1:01:42Leah Litman?

  Marty, if that were the bar, we would never go to sleep.

• 1:01:45Speaker 06

  I don't recommend my lifestyle for anyone. And my lack, my lack of sleep, particularly in this case, for a man of my age, I basically pulled two all-nighters. I had to do all the research on this question and then write the brief in the span of basically 48, 72 hours.

• 1:02:00Kate Shaw?

  Because when the administration files its emergency motion in the court, you're saying Barrett gives three days. And so that means you've got those three days to get your brief in.

• 1:02:07Speaker 06

  So technically, I could have waited longer. But I wanted to be fair to the Solicitor General, actually, and allow them to respond to this argument in their reply brief. If there were to be any, and so I wanted to get it done this so that the order goes out on a Friday afternoon and I got the brief in on a Tuesday afternoon, three days, I think that's three days, Saturday, so four days later, after pulling a couple of all-nighters, got it in and then shot, you know, was very, very surprised when I don't know how many days later, 10 or 12 days later, the court asked the parties to address the question I had raised without mentioning my brief, which is fine. And then the court allowed me to file a supplemental brief, actually, at the same time that other Amikys were filing

• 1:02:52Speaker 06

  the brief also. So I did that. So I ended up filing two briefs on the questions, not only on this statutory question, but also sort of on the follow-on questions about the Insurrection Act, which you guys mentioned and which and the court did say something about. So that's basically it. It was just an exercise in pushing the boulder up the hill and maybe Sisafus gets to the top of the hill once every 30 years without the boulder crushing him. I hope it doesn't take that long again. But that's the basic story. You know, if you'd have given me a month, maybe it would have been a better brief.

• 1:03:29Melissa Murray?

  It got the job done. It got the job done, Marty. It got the job done. Got the job done. We should talk, Marty, a little bit about the implications of this decision. So in his Cav currents, Justice Kavanaugh suggested that because we were taking off the table the opportunity for the president to federalize the National Guard, that might leave the administration in the position where they would be more likely to invoke the Insurrection Act, which would authorize the deployment of the actual military to do domestic law enforcement. As a general matter, under federal law, specifically the Posse Comitatus Act, the military isn't permitted to engage in domestic law enforcement.

• 1:04:10Kate Shaw?

  And there are a whole bunch of reasons for that prohibition on the military engaging in ordinary domestic law enforcement. Military forces are not trained the same way domestic law enforcement is trained. They are trained for war, not patrolling the streets. And more to the historical point, the framers were really concerned with the prospect of a standing army running roughshod over the rights of citizens. And that fear is reflected, I would say, both in the Constitution and in federal law. But as Melissa alluded to, the Insurrection Act is an exception to the general prohibition on military doing law enforcement. In circumstances of an insurrection against the federal government, the president is authorized to deploy the federal military if the requirements of the Insurrection Act are satisfied, whether those are reviewable by court, separate question.

• 1:04:52Kate Shaw?

  But so Marty, I guess, do you think the administration is now likely to invoke the Insurrection Act in light of having this door closed if it wants to, you know, use forces to enforce federal law?

• 1:05:05Speaker 06

  Your guess is as good as mine, Kate. I mean, I do think this was the concern. This may have been one of the reasons the states were not making the argument that I was making. They were afraid that the Trump administration would just turn around and invoke the Insurrection Act and send in the regular military. And I do want to, we can maybe circle back to it in light of the tragic events yesterday in Minneapolis and Renee Good's killing. Circle back to the question of, you know, these statutes and the constitutional tradition that you refer to are almost turned on their head, right? I mean, I think most Americans would agree that a militarized ICE or local law enforcement are in some ways much more dangerous, maybe as a practical matter, than the trained military

• 1:05:46Speaker 06

  forces, who would not use lethal force nearly as quickly and without, you know, without any standards as those forces are. So there's a certain irony here. But yeah, in my first brief, I urged the court not to address the Insurrection Act questions. And the executive branch has historically construed those laws not to apply in cases like this. But the language of those laws is very broad, just looking at the statutes themselves, without regard to the history or the tradition that Deputy Attorney General Nick Katzenbach wrote about in 1964. So I cite this memorandum, saying that it should be construed consistent with our Constitution and our history of great skepticism about the militarization.

• 1:06:33Speaker 06

  On US soil for law enforcement purposes, and that should only be used in discreet, limited circumstances. And urged the court to hold that the military, you know, you had to, the National Guard could only be used if the regular military was both legally authorized to act and was unable to, to, to address the problem adequately. And interestingly, the court did adopt that second argument of mine, right? They did say, they basically took this 12406, this idiosyncratic statute off the table, which I think is reflected in the fact that the administration's pulling all the troops from, they were, they were never really deployed or not much deployed in Los Angeles and Portland

• 1:07:15Speaker 06

  and Chicago, but they've led them back into their state National Guard posture.

• 1:07:21Leah Litman?

  Well, I was gonna ask you, you know, you apparently persuaded the president, Marty, who posted on Truth Social to announce that he would comply with the court's order and was removing the National Guard from those places. Um, you know, I don't know if that makes him the pullout president or what, um, but how, how does that feel?

• 1:07:35Speaker 06

  Well, I think he's just very attuned to what I suggest.

• 1:07:38Leah Litman?

  Yeah, he was deep in your amicus brief.

• 1:07:40Speaker 06

  He's very responsive to it. No, I think, I, I think he was told, I think, I think the message from the Supreme Court, the implicit message was enough of this 12406 thing. That's, that's a dead letter here. Like either you're gonna say that there's authority under the Insurrection Act or Article Two for you to use the military or not, but that's what you're gonna have to do. And that's a pretty, I was actually heartened by the fact that they basically, someone told the president, don't go right in and use the military now, in part because it would seem fairly absurd, right? There's not violence going on in Chicago and Portland and Los Angeles. And it would be the worst posture in which to try to assert those authorities. But he did warn that if things get worse, he might do so.

• 1:08:25Speaker 06

  And so that remains, Kate, a, a, a prospect for, you know, if there is violence in reaction to immigration authorities, it might be that the Insurrection Act question does arise. And I think in the first instance, it won't be the courts that have to confront that. It'll, it'll be DOJ and DOD and whether they will.

• 1:08:45Speaker 06

  Comply with this tradition that Deputy Attorney General Katzenbach described in 1964 about the limitations on those authorities.

• 1:08:53Melissa Murray?

  All right, Marty Lederman, thank you so much for joining today and for giving us that deep dive into what the Supreme Court, I think, only touched on in that very sparse three-page order. So, thank you for adding much-needed context and, as always, for looking into the interstices and finding some new legal theories to give this court an off-ramp for itself. Thank you.

• 1:09:16Speaker 06

  It's my pleasure. Now you've given me two possible epitaphs, right? Like, he looked into the interstices would be one, and then he was like, the podcast mens.

• 1:09:26Kate Shaw?

  Mens of the pod, actually.

• 1:09:27Melissa Murray?

  Podcast mens who looked into the interstices to find off-ramps. Yes, that's you.

• 1:09:33Speaker 06

  It's great to be with you guys. It's a pleasure. Anytime.

• 1:09:36Kate Shaw?

  Okay, so we no longer have Marty with us, but we have a little bit more to cover on this case. And we want to start with some pretty whiny dissents from Gorsuch and Alito, really complaining about the court making a major legal ruling on a novel question on the shadow docket.

• 1:09:50Melissa Murray?

  Melissa, are you okay? No, Leah, I'm just staring in every single shadow docket order that allowed the president to appropriate Congress's power and/or overrule extant Supreme Court precedent. So, don't mind me. Fine. No big deal. No big thing. Dissent all you like, fellas.

• 1:10:08Kate Shaw?

  Okay, so there is that, which we will get to, and try to keep our blood pressure under control, both of those dissents, that is. And there is also a concurrence. So, this is a writing agreeing with the decision not to stay the lower court's order. This concurrence was written by Brett Kavanaugh, and we definitely need to talk about it.

• 1:10:27Melissa Murray?

  Oh, stop. Is this a new segment for the new year? Is it time to have our inaugural, "We Need to Talk About This" Kev Currents segment? Is that what this is?

• 1:10:38Kate Shaw?

  I think so.

• 1:10:39Melissa Murray?

  I don't manifest that. Don't manifest it, even though I know we are. It's always been there, Leah. It's always been there. I know. I'm picking it up in 2026. I'm picking it up.

• 1:10:51Leah Litman?

  And we have to do this because Brett took CRAN to paper to not only warn us about the prospect of the president invoking the Insurrection Act, but also to try to walk back the Kavanaugh stops.

• 1:11:07Kate Shaw?

  So let's actually read in full the relevant portion of footnote four, the new footnote four in constitutional law. And it says, quote, "The state's opposition to deployment of the National Guard appears to stem in part from the state's underlying objections to the activities of federal immigration officers when they make immigration stops." And then he says some other stuff, and then he continues, "The officers must not make interior immigration stops or arrests based on race or ethnicity." CF, and here he cites Ren versus United States, quote, "The Constitution prohibits selective enforcement of the law based on considerations such as race." Okay, first observation, this footnote, this discussion in the footnote is entirely gratuitous to the question before the court in this case. This

• 1:11:51Kate Shaw?

  case does not squarely present the question of legal authority to conduct immigration stops.

• 1:11:56Leah Litman?

  Nothing to do with that. Nothing to do with that.

• 1:11:59Kate Shaw?

  Bestirred himself. Well, the background context, but the legal issue-

• 1:12:03Leah Litman?

  You're reaching.

• 1:12:04Kate Shaw?

  Completely unrelated. And yet, he felt the need to say this. And so I posed the question to you two, why?

• 1:12:11Leah Litman?

  Because he is the biggest baby on the Supreme Court. And Professor Khan, you know, at Draxel Klein, and everyone calling these things Kavanaugh stops got to him. And I'm sorry, kids, sometimes bullying works and it's good. This is the power of shit talking.

• 1:12:28Melissa Murray?

  I will just say, when they tell you that they don't pay attention to this, like, guys, do not believe them. They totally pay attention to what people are saying. I will also note, I don't understand what Brett was trying to do here. I mean, the horse is out of the barn. And I don't know how many ICE officials read footnotes and are like, you know what, let me rethink my racial profiling. Hold on a second. Like, how is this supposed to, like, correct something? I mean, I guess for the record, he's like, I did not authorize unrepentant racial profiling, but the horse is out of the barn. But he kind of did.

• 1:13:07Melissa Murray?

  And the horse is out of the barn. So I just like, I don't know what he's trying to do here. Like, what are you trying to do here? I don't know.

• 1:13:12Leah Litman?

  What is he ever trying to do? And, you know, not to be kind of nitpicky, but also to be nitpicky. You know, as Kate noted when she quoted the footnote, Kavanaugh cited Ren for the proposition that you can't make stops based on race. And it's like, my guy, you do know that Ren is the decision that effectively made it impossible to challenge racial profiling because Ren said, so long as the officer has probable cause, you know, the fact that you are alleging you were stopped based on race doesn't matter. Like, this is the decision that literally is the one associated with what it means to like, drive while black. And like, what is it with this guy and bad citations? Because this is not the first time he cited a case for like,

• 1:13:57Leah Litman?

  the exact opposite of what it means. In his opinion, in the USAID case from a few years ago, he announced that, you know, typically foreigners abroad don't have constitutional rights. And he cited, wait for it, Bouma Dian versus Bush, the case that held non-citizens detained at Guantanamo Bay, Cuba, have constitutional rights under the suspension clause. You know, I don't know if his clerks hate him. I don't know if he can't read and also his clerks can't read. It's just mind boggling.

• 1:14:35Leah Litman?

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• 1:18:06Melissa Murray?

  All right, folks. So there's some additional legal news that we wanted to cover. As Marty alluded to when we were talking about the National Guard case, last Wednesday, there was another ICE shooting. This time, it was a fatal shooting of a civilian, 37-year-old Renee Nicole Good, a wife and the mother of a six-year-old. DHS's initial statement suggested that the officer who shot Good did so because Good was, quote, "a terrorist" who tried to assault the officer with her vehicle. However, there is contradictory video evidence, and the video suggests that Good may have simply been trying to turn her car around when the officer fired his gun into her car window at point-blank range,

• 1:18:49Melissa Murray?

  shooting her in the face. The New York Times has a slow-motion analysis of the entire incident, and it is worth checking out.

• 1:18:57Leah Litman?

  I don't know if you all saw this, but right before we sat down to record, some additional footage was released, and it looks like it's the footage that the officer who shot Good recorded on his phone. And it captures the last interaction between Good and the officer, in which she is smiling at him and says, "I'm not mad at you." And he continues circling around the car. And at the end, like, you hear someone say, like, after the gun is fired at her head at point-blank range, "fucking bitch." And, like, it could be...

• 1:19:35Leah Litman?

  The officer, like it is, yeah, I am just at a loss. I mean, I moved our discussion of this out of the segment we did with Marty and to here because we actually recorded with Marty yesterday and I was not sure I could keep it together the day we recorded with him. I'm going to try to do so now. But like part of what makes us so chilling is the administration's blatant lies and insults and smearing of Renee Good, who had just been gunned down by one of their goons. And again, there's video evidence and they are sticking with the lie. Like they don't care. And so it just makes it perfectly clear, like they will excuse murdering anyone.

• 1:20:18Leah Litman?

  It doesn't matter what the facts or evidence say, they're just going to blame you. If you're a woman, a Democrat, you live in a blue state, you are engaged in exercising your constitutional rights, like it's your fault. Some of them have made this basically explicit, you know, saying, well, so long as you obey the ICE officer, like you will get to live. And it's like, there is now this like armed militia that has been unleashed on the country committing human rights violations. This is a woman who went to drop off her kid at school, saw ICE present and was like talking to them and trying to film it. And I, yeah.

• 1:20:55Melissa Murray?

  So Juliette Kayyem, who used to be in DHS in the Obama administration, had a really great segment on KQED, the National Public Radio affiliate in the San Francisco Bay area. And one of the things she pointed out that I thought was exactly right and that I hadn't thought about is the idea that even if you were being noncompliant with law enforcement, that's kind of what law enforcement is supposed to be prepared to address. Like most people who come into contact need to be arrested or whatever.

• 1:21:29Leah Litman?

  Are violating the law.

• 1:21:30Melissa Murray?

  Like, like, let's literally, you're supposed to be trained to deal with people engaged in noncompliance. And most of the time, dealing with them does not require them to be dead at the end of the interaction. Like, part of your training is about how to diffuse situations, even with noncompliant people.

• 1:21:48Leah Litman?

  Yeah.

• 1:21:49Melissa Murray?

  So that they may be restrained, but they're still alive. And the fact that this, there's so much wrong with the video here. Not just, you know, that it ends in her death, but that they don't render medical assistance to her, even though there is a physician who has identified himself as a physician on site.

• 1:22:07Leah Litman?

  They walk away, they don't provide assistance, they don't let other people do so.

• 1:22:10Melissa Murray?

  They leave the scene, which is like altering an active crime scene when you leave. I mean, there's just so much wrong here. And then Kristi Noem calls this

• 1:22:20Leah Litman?

  Oh, my God.

• 1:22:20Melissa Murray?

  domestic terrorism. And they won't allow Minnesota to minimally participate in the investigation. Yet we know from 9/11 that one of the failures of 9/11 was the failure of domestic state and local law enforcement to work with the federal government. So going forward, post 9/11, that was standard. If you had quote unquote terrorism, you were supposed to engage not just the feds, but also state and local.

• 1:22:44Leah Litman?

  Also, there's no such thing as domestic terrorism. That's not a thing.

• 1:22:47Melissa Murray?

  Well, I mean, but using, even using her language, it doesn't make sense. Like, if this was truly terrorism, you're supposed to work with the state and local officials.

• 1:22:55Kate Shaw?

  Yeah. A couple of other things. I mean, initially, it feels like, at the very minimum, an egregious failure of training and protocol. But then the statements that followed fast on the heels make it sound like much worse. Like, actually, this is quite deliberate. This is the training. This is

• 1:23:10Melissa Murray?

  Well, the six weeks of training, they've gone from basically, it was like 15 plus weeks to now six weeks, so they can get more people in the field.

• 1:23:16Kate Shaw?

  But that's the charitable reading, is that they're just not actually giving them the tools they need to diffuse. But maybe they don't want them to diffuse, right?

• 1:23:23Melissa Murray?

  No, 100%.

• 1:23:23Kate Shaw?

  That is the less charitable reading.

• 1:23:25Leah Litman?

  Well, the posture now is you shoot someone, and we'll say anything to defend you.

• 1:23:28Kate Shaw?

  Completely. Anything to defend you and to disparage them. And I have to say, I was really struck by what Marty said in that conversation, that as terrifying as the prospect of deployment of the actual military to the streets of American cities is. The military would not be behaving like this with the population. Again, it's not something to ask for, but I just think that more agrees

• 1:23:48Leah Litman?

  You sure about that?

• 1:23:49Kate Shaw?

  Yeah, I think it's complicated. I mean, I'm just saying that like, I just think ICE and CBP and all of these DHS components, you know, not recognizably law enforcement. They are acting as this paramilitary force that is just a truly terrifying presence in cities in a way that I think is much scarier than the National Guard. And again, we have not seen the military, and I hope we never do. But it was such an interesting perspective, and I've been reflecting on it since we had that conversation. Despite the efforts by the federal government to thwart investigations and involvement by state and local officials, the response from state officials has been swift, so has the public response. So here's a clip from the mayor of Minneapolis.

• 1:24:26Speaker 08

  To ICE, get the fuck out of Minneapolis.

• 1:24:31Kate Shaw?

  Senator Tina Smith of Minnesota also weighed in along the same lines. Here she is.

• 1:24:35Speaker 09

  Think the Trump administration is so fixated on Minnesota right now?

• 1:24:38Kate Shaw?

  Well, I wish I knew. I mean, I wish they would just leave us the fuck alone. I mean, seriously. Minneapolis and Minnesota residents have been stepping out to challenge federal law enforcement presence.

• 1:24:48Speaker 09

  You're gonna run someone else off and shoot them. You're gonna shoot someone else and kill them? You're gonna murder someone else? You're gonna shoot someone else? Come on, kill us all. You can't kill us all. You can't kill us all, Nazis.

• 1:25:05Leah Litman?

  So that clip Kate just played is actually, you know, from the events that unfolded right after Good's shooting. And like, the response of Minnesotans has been heartening to me. Again, like, the image of the blood-soaked steering wheel with the stuffed animals in the compartment. Is excruciating and it is scary like to go out, you know, after this happens to protest, to hold vigils when you have these armed, untrained zealots, like with guns on the street. But, you know, after seeing ICE shoot and kill

• 1:25:49Leah Litman?

  one of their neighbors, like people continue to protest even in the moment in real time and more showed up for vigils. And, you know, if and when you think people aren't doing anything and there is no resistance, like, think of moments like this, like people are just showing up on their own as a community, like not because someone is telling them to do so, you know, or it's like organized top down. ICE, of course, made everything worse, you know, in the immediate aftermath of, you know, Good's murder, public schools in Minnesota had to shut down because of safety concerns. ICE, you know, showed up to a school Roosevelt and shackled people, tear gassed students at a school. Like, the day after an ICE officer murdered Good, immigration officers reportedly CBP,

• 1:26:32Leah Litman?

  shot and seriously wounded two people in Portland and then again left them in the street. And I just wonder, like, is this an escalation, you know, as there are more protests and pushback? And like the regime and its lackeys like get more desperate, like is, is this now? Yeah.

• 1:26:54Melissa Murray?

  All right. Speaking of unbridled zealotry, there continues to be fallout from another one of the Supreme Court's disastrous opinions. This time, the disastrous opinion is Mahmoud versus Taylor. That was the case from last term that announced that parents have a constitutional right to opt their children out of public school instruction, even when that instruction is nothing more than reading storybooks with LGBTQ characters. So you might recall this as the pride puppy case.

• 1:27:22Kate Shaw?

  Well, here's the next chapter. A parent in Lexington, Massachusetts has invoked that decision in Mahmoud to challenge public school instruction that this parent says "normalizes LGBT relationships." The horror. Okay, so what is this insidious normalization that the parent is complaining about? Reading aloud Suzanne Lang's book Families, Families, Families, a book that depicts two roosters and chicks and reads in part, "Some children have two dads," and also contains the subversive text, "If you love each other, then you are a family."

• 1:27:52Leah Litman?

  Another apparently objectionable book shows a picture of a pregnant woman walking together with another woman, which could imply

• 1:28:02Leah Litman?

  That they are, gasp, the horror lesbians.

• 1:28:07Melissa Murray?

  I don't know. Neil Gorsuch might have a different take.

• 1:28:09Leah Litman?

  Right. He would think that they are drag queens or like BDSM.

• 1:28:12Melissa Murray?

  Sex workers.

• 1:28:13Leah Litman?

  Yeah. Yeah. Yeah. Yeah.

• 1:28:15Melissa Murray?

  Yeah.

• 1:28:16Leah Litman?

  That was his take on Pride Puppy.

• 1:28:18Melissa Murray?

  Anyway, speaking of civil wrongs, our Assistant Attorney General of Civil Rights continues to cover herself in absolute glory. In this social media savvy administration, it is hard to outship post your fellow Senate confirmed officials, but the Assistant Attorney General for Civil Rights, one Harmit Dillon, certainly tried. Ms. Dillon, like other Trump officers, has been criticized by right wing influencers because they don't think she's done enough to be really, really right wing and MAGA. And in particular, they note that she has failed to launch politically vindictive prosecutions of every single person who ever investigated anyone involved in the January 6th insurrection. And Ms. Dillon

• 1:29:02Melissa Murray?

  took that personally. Like any other diligent public official, she decided to get on X/Twitter where she posted the following, quote, "Conservative influencers, if you think you are keeping the pressure on or winning by spreading bullshit attacks on Donald Trump's handpicked cabinet, you are not. You are earning money to spread misinformation. You are hoes. Learn an honest profession."

• 1:29:31Melissa Murray?

  Meow. Bowl of milk to table three. What? Okay, so there's so much to unpack here. I never thought I would see the day when the Assistant Attorney General for Civil Rights would get on social media and call people hoes.

• 1:29:51Leah Litman?

  I didn't either. Like, I read that and I thought this has to be fake. It was not.

• 1:29:56Melissa Murray?

  I thought so too.

• 1:29:57Leah Litman?

  And we should, we should all take stock of, you know, the norms such as they are. What is objectionable apparently is a picture of two women walking together. What isn't objectionable is calling right wing pundits hoes. So this is the new civil rights or whatever it is they're propagating over there. Yeah.

• 1:30:22Melissa Murray?

  I guess.

• 1:30:22Kate Shaw?

  Did she also spell it like a garden hoe? There was that, I mean, that was like the least of the problems.

• 1:30:26Melissa Murray?

  Isn't that how it's spelled? I mean, how do you spell it?

• 1:30:29Kate Shaw?

  I mean. I think just H O. There's a, there's a long footnote.

• 1:30:31Melissa Murray?

  That's Haas.

• 1:30:32Kate Shaw?

  Opinion about this.

• 1:30:33Melissa Murray?

  Is there?

• 1:30:33Kate Shaw?

  The plural is, the plural is tricky.

• 1:30:35Melissa Murray?

  What's the style guide for hoe?

• 1:30:38Kate Shaw?

  I just remember a Posner opinion that somebody dredged up after this that was the year before I clerked for him, that had a long footnote about a mistaken transcription of an accusation that someone was a hoe, H O E, and the footnote says something like.

• 1:30:51Melissa Murray?

  Well, no, like, singular is definitely.

• 1:30:53Leah Litman?

  Singular is definitely.

• 1:30:54Melissa Murray?

  The question is plural.

• 1:30:56Kate Shaw?

  Yeah, yeah, yeah. It's still H O E S, I think, is questionable as a plural. I hear you. H O S, you think, looks like Haas?

• 1:31:01Melissa Murray?

  Yeah.

• 1:31:02Leah Litman?

  Yeah.

• 1:31:03Kate Shaw?

  You could throw in an incorrect, but, but sometimes, you know, like.

• 1:31:06Melissa Murray?

  No, this is not, this is not a holiday card. We're not going to have incorrect apostrophes. Like, I can't tell you how aggravated this made me during the holiday season when I was like, do I have to send a style sheet to everyone who has a plural?

• 1:31:19Kate Shaw?

  Well, what is the plural of hoes for, or holiday hoes?

• 1:31:22Melissa Murray?

  Now, you know when people have an S on their last name, but they can't, like, you gotta do E S and instead they do an apostrophe? I'm like, no, honey, no.

• 1:31:29Kate Shaw?

  Yes, no.

• 1:31:30Melissa Murray?

  No.

• 1:31:31Kate Shaw?

  Your standards are high.

• 1:31:32Leah Litman?

  Speaking of parsing language, we, that's my attempt.

• 1:31:36Kate Shaw?

  Good segue.

• 1:31:37Leah Litman?

  We got the Supreme Court's first opinion in an argued case. It was Bowie versus United States, an important habeas case. This was a five to four opinion, you know, for the most part, although one part was five to three. Justice Sotomayor wrote for a majority that the limitations in the Anti-Terrorism and Effective Death Penalty Act that specifically, like explicitly, apply to petitions brought under 2254, the provision governing post-conviction relief for state prisoners do not apply to petitions brought under 2255, the provision governing post-conviction relief for federal prisoners. So, under EDPA, claims that are re-raised in a second or successive 2254 petition, again, those are petitions brought by state prisoners, must be dismissed.

• 1:32:22Leah Litman?

  But the law contains no similar provision on 2255 for federal prisoners. And the court said, you know what? Textualism, the text, it matters. At least five of them said this. The court also said that another provision governing second or successive petitions, which prevents petitioners from filing cert petitions, that is, asking the Supreme Court to hear their case, when their request to the Court of Appeals to file a second or successive application is denied. That also doesn't apply to 2255 petitions, again, federal prisoners as opposed to state prisoners. Noted textualist Neil Gorsuch wrote the dissent for himself, Alito, Thomas, and Barrett. Barrett only joined, you know, the opinion on one part of that, not the other. She listened to the law. She just didn't like what it said.

• 1:33:07Leah Litman?

  I would have put this opinion in my favorite things, but I've already got another opinion in there.

• 1:33:12Kate Shaw?

  One thing that seemed notable about this, apart from this sort of very unusual occasion of the Supreme Court dealing Leah good news, something she's happy about and wants to put in her favorite things, is that customarily, I don't think this is true every term, but very, very, like, large majority of the time, the court starts its opinion issuing season with the first opinion that is released in an argued case being unanimous, often short, fairly straightforward, like, it makes sense. They wrote it quick. And it's sort of, I don't know, starts things on a consensus note.

• 1:33:44Leah Litman?

  Nope.

• 1:33:45Kate Shaw?

  Maybe that's the idea.

• 1:33:46Leah Litman?

  Nope. Maybe there are just no unanimous opinions, right? And this is a sign about where we are.

• 1:33:51Kate Shaw?

  We have to entertain that possibility. Yeah. So I think that, yeah.

• 1:33:56Leah Litman?

  This is a post-consensus court.

• 1:33:57Kate Shaw?

  Yeah. I think they might have just told us that.

• 1:33:59Leah Litman?

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• 1:34:41Leah Litman?

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• 1:35:25Leah Litman?

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• 1:36:10Speaker 10

  On election night, we will all be feeling a lot of feelings. Do not spend it alone. Spend it with me, Alex Wagner, for Crooked Media Presents: Live Election Results. We're going to have Jon Favreau, Jon Lovett, Tommy Vitor, Stacey Abrams, Dan Pfeiffer, Aaron Ryan, and many more special guests to be announced. And they're all going to help us make sense of what's happening as the election results roll in. So here's what you need to do. Subscribe to Pod Save America on YouTube and tune in on Tuesday, November 3rd at 9:00 PM Eastern, 6:00 PM Pacific for hot takes, catharsis, and as many results as we can possibly analyze.

• 1:36:55Melissa Murray?

  One final thing, and this is really kind of an addendum to our conversation with Marty. Of course, after we talked to Marty about this administration's disdain for the law, including the War Powers Act, which Vice President of the United States JD Vance called fundamentally fake and unconstitutional, not so, but whatever. In any event, after we talked with Marty about the administration's disdain for the law, The New York Times published a wide-ranging interview with Donald Trump in which the President of the United States had the following things to say.

• 1:37:30Leah Litman?

  So asked if there were any limits on his global powers, Mr. Trump said, quote, "Yeah, there is one thing, my own morality, my own mind. It's the only thing that can stop me."

• 1:37:40Kate Shaw?

  There were quite a few other eye poppers in that interview. Here are a couple of others. One, when the interviewers followed up about whether the administration needed to comply with international law, Trump said, "I do," but then quickly added, "It depends what your definition of international law is." He did add, quote, "I'm not looking to hurt people," which I for one found hugely comforting.

• 1:38:04Melissa Murray?

  It really depends on who you count as people.

• 1:38:06Kate Shaw?

  People, yeah. And hurt.

• 1:38:08Melissa Murray?

  Yeah.

• 1:38:09Kate Shaw?

  And looking to versus just incidentally managed to do so. Yeah, you're right.

• 1:38:13Melissa Murray?

  Right.

• 1:38:14Kate Shaw?

  Lot of potential questions embedded in there.

• 1:38:16Melissa Murray?

  The president also provided more guidance on his plans to either purchase or invade Greenland, TBD. He explained why he thought it was necessary for Greenland to be under the control of the United States, as he said, quote, "Because that's what I feel is psychologically needed for success."

• 1:38:36Kate Shaw?

  That was absolutely an insane interview.

• 1:38:39Melissa Murray?

  Yes. Actually, I don't, I actually thought this was the least insane thing about the interview.

• 1:38:44Kate Shaw?

  I can't. How? Tell me, explain how.

• 1:38:47Melissa Murray?

  He's basically, like, this is actually kind of like a property law sort of thing. He was like, "Right now, we don't have, like, we could work with Denmark through NATO to have some, you know, access to Greenland, but that would make us renters. We would never be able to actually improve." Prove the property. That's why we need to own this. This is basically a property law theory. What about psychologically needed? Like, that's the part that was so peculiar and perplexing. That's because he thinks of himself as a real estate mogul. He's like, he has the mindset of an owner. He's like, I'm not a renter. I'm not short term.

• 1:39:19Leah Litman?

  And so he needs to invade a NATO ally, right? Like, that's the part that makes it a little like, mindset of an owner.

• 1:39:26Melissa Murray?

  Like, Leah, like, you got to understand the New York real estate market to really inhabit this. Obviously, like, you know, like, renting is different. Like, you put up walls, but are you staying there forever? Who knows? He's like, you can do more. It's better for your psychological success to own.

• 1:39:43Kate Shaw?

  Well, the stuff he's doing at the White House does not seem like renter stuff.

• 1:39:46Melissa Murray?

  No, I think, exactly, exactly. If you were wondering about that third term, I think you know now. It's all been answered.

• 1:39:55Leah Litman?

  Let's talk about some of the things that are psychologically needed for our success, our favorite things.

• 1:40:01Kate Shaw?

  Good idea.

• 1:40:01Melissa Murray?

  So.

• 1:40:02Leah Litman?

  Segue, Leah, you're crushing it in 2026.

• 1:40:05Melissa Murray?

  I agree.

• 1:40:06Leah Litman?

  I will start. Thank you. So I appreciated Chris Guiner's piece on LawDork, Jan Crawford's attack on SCOTUS corruption narrative was its own substantive free narrative. Also, Sherrilyn Eiffel on Sherrilyn's newsletter over at Substack, The Year America Broke Open, kind of reflecting on the first year of the Trump administration and what we should take from it. As I mentioned, I have an opinion that goes in here, and that is the Wyoming State Supreme Court decision striking down the state's abortion ban, which is subject to only the narrowest exceptions. The court held that the Wyoming Constitution includes a fundamental right to health care and that abortion is a necessary component of women's health care.

• 1:40:46Leah Litman?

  Because, you know, this law implicated a fundamental right, the court applied strict scrutiny, the best standard, as we often say, to strike down the restriction. On a less substantive note, over the break, I read all of the Game Changers series, the books. And I watched, yep, and I watched Heated Rivalry. So the books, you know, they're not like my favorite romance books, you know, they're cute, they're endearing, they get like a little formulaic by the end. And then my sister, youngest sister insisted I watched all of Heated Rivalry. The first three episodes, I was kind of like, I don't really get it, you know, like, it's a thing. Then the end of the fourth episode.

• 1:41:29Leah Litman?

  My soul left my body. I was levitating. I cannot listen to the remake of all the things you said. Oh, I love that. Tattoo, tattoo. It's a remake of the song by another artist that I'm blinking on. It plays at the end of episode four. You will not be able to listen to that song without reliving the end of episode four, I guarantee you. I'm not, I'm so, I'm teed up for episode three. Okay, make it through episode three and then episode four, life-changing, episodes five and six, enduring. So that's all I will say there. Kate has a look on her face that's just like words. No, I plan to, I plan to watch this. I'm still finishing the most recent season of The White Lotus, which I promise I'll finish. And then I'm gonna do The Beast in

• 1:42:13Leah Litman?

  Me, which I am excited about. Did you guys watch that? I watched that. I love, I love Claire Danes. I love Matthew Reese. I did not love that show. But still worth watching? Yeah. I think Brittany Snow is having an amazing year between that and The Hunting Wives. Like, good for her. Yeah, for sure, for sure. Yeah, especially after the whole thing with her ex-husband. I know, I know. You know what? One other item in my favorite thing. This upcoming Wednesday, January 14th, from 12 to 1:30 in the Upper Senate Park in Washington DC, there's going to be a big rally, Rally for America's Workforce, PAWA, P-A-W-A, to the people. So in March, the Trump administration issued an executive order that stripped collective bargaining

• 1:42:57Leah Litman?

  rights from like 85% of the unionized federal workforce and Protect America's Workforce Act, PAWA, passed the House last month. That would overturn that executive order and restore collective bargaining rights. And the January 14th rally is aimed at pressuring Congress to actually pass PAWA, you know, as part of upcoming appropriations. So if you're in DC, it's January 14th, 12 to 1:30 in Upper Senate Park.

• 1:43:24Kate Shaw?

  All right, I think my turn. Some favorite things. Okay, I too did some reading over the break, although not as much as it sounds like Leah did. I read Audition on Melissa's recommendation, I think, in one of our last episodes.

• 1:43:35Melissa Murray?

  Katie Canemora.

• 1:43:36Kate Shaw?

  Loved it. Yeah, still thinking about it. I read A Marriage at Sea, and I finally read, this is a few years old now, but David Grand's nonfiction swashbuckling seafaring book, The Wager, set in the 1740s, and like the most riveting thing you've ever read. So, a lot of seafaring disasters for me over the holiday. Couple of other things to recommend. You might have missed it because last week, there was just so much news, but our friend, Commander Professor Steve Lattick, had excellent testimony before the Senate Judiciary Committee, I think on Wednesday of last week. And there are people in Congress who are still talking about impeaching federal judges for ruling against the Trump administration, and he is just incredibly forceful in his pushback.

• 1:44:20Kate Shaw?

  So, recommend either reading or watching that testimony. Also, sorry, one more thing I said on the reading front. I feel like I want to throw myself a party. I finally finished The Power Broker, you guys.

• 1:44:30Melissa Murray?

  All right, Kate.

• 1:44:31Kate Shaw?

  I am so proud of myself and also really understand a lot of things about New York City real estate and history.

• 1:44:36Melissa Murray?

  That you should have understood the psychological need to own Greenland.

• 1:44:42Kate Shaw?

  Honestly, the Bob Moses Donald Trump nexus is significant.

• 1:44:47Melissa Murray?

  Oh, yeah.

• 1:44:48Kate Shaw?

  Thoughts on that? I mean, many.

• 1:44:50Melissa Murray?

  Yeah.

• 1:44:51Kate Shaw?

  But, okay, so last thing, though, I will recommend is, I met a lovely, young striccy at the Albany, New York Airport gift shop on December 27th, when we were like dealing with absolute travel mishegus and a blizzard grounded us. We ended up staying a night in Albany, a night in Atlanta, before we finally made it to Mexico for like five nights. But, okay, so this young woman came up to me while I was with my 14-year-old and said, "Are you the podcaster? You're an icon." She said, "You're an icon," in front of my 14-year-old. And you cannot buy that kind of publicity. It was, my 14-year-old was like, "Dear Mom, that's so cool." Anyway, I was like, "I did not set that up. That just happened in the wild, organically." Anyway, I'm so sorry I didn't get your name. I was just so excited by the interaction, but thank you for making me look extremely

• 1:45:35Kate Shaw?

  cool, just momentarily, in the eyes of my teenager.

• 1:45:39Melissa Murray?

  That's, I mean, that is a big thing. You know, my teenager is just... So underwhelmed with everything.

• 1:45:46Kate Shaw?

  If you listeners see Melissa in the wild, just like tell her she's an icon. And if someone, if an offspring happens to be nearby and hears it, that would be great.

• 1:45:54Melissa Murray?

  I will, once I was walking with my teenager and we ran into Busy Phillips, who I had testified before Congress with. And so I stopped and talked to Busy Phillips for a little bit. And then on the way back, my teenager's like, how do you know her? I was like, oh, we testified before Congress together. And then my teenager was like, oh, I thought it was like something cool.

• 1:46:21Melissa Murray?

  Nope, it's pretty boring stuff. Law related, sorry. I was like, like, when would I be doing something really cool with Busy Phillips? Like, come on. Anyway. Okay. So over the break, I found unexpectedly a book that hit my sweet spot of rom com and thinly veiled critique of the British royal family. And it was called Era Parent by Rebecca Armitage. It was also apparently a Reese's book pick, but I absolutely loved it. I thought it was fantastic. Read it in like two days. Boom. I also reread Tomorrow and Tomorrow and Tomorrow by Gabrielle Zevin,

• 1:47:02Melissa Murray?

  which still slaps. If you have not read this book, pick it up. It's so, so good. I didn't read it for almost two months because the blurb on the back suggested that it was related to video games. And I was like, why do I want to do that? Like, I hate video games, but it's not really about video games. And it's just an amazing epic friendship story. Pick it up. It's absolutely fantastic. At the urging of many friends, including Leah, I just started Heated Rivalry on HBO Max and loving it. Just like red, white, and royal blue, only with hockey. I love it. So good. So if you watch us on YouTube, when you're done watching our entire episode on YouTube,

• 1:47:44Melissa Murray?

  pivot again to Ziwei. I know I've recommended her interview with Eric Adams. She dropped a banger of an episode with rapper Vince Staples over the holidays. I've probably watched it 50 times. These two have such amazing chemistry together. Like, I literally want them to do heated rivalry, part two, where they get together after the interview and like have babies or something. Like, they're, they're, they're so obviously charged. Like, they definitely have chemistry. And it's a hilarious interview. I also saw some stricties in the wild. So I want to say Happy New Year to the stricties whom I met in line at Universal Orlando. I hope that you, unlike me, did not wait 240 minutes, literally

• 1:48:29Melissa Murray?

  four hours, to ride Hagrid's magical motorbike.

• 1:48:32Kate Shaw?

  Oh, dear God. How was it?

• 1:48:33Melissa Murray?

  I didn't, I did not ride. I was just literally waiting for a child. I dropped the child off at 1 o'clock to start the ride, to get in line. I picked the child up at 5 o'clock.

• 1:48:47Kate Shaw?

  Wow.

• 1:48:48Melissa Murray?

  And I was like, was it worth it?

• 1:48:49Kate Shaw?

  Yeah, and what was the answer?

• 1:48:51Melissa Murray?

  Yes.

• 1:48:52Kate Shaw?

  Okay.

• 1:48:52Melissa Murray?

  And I'm like, okay. I mean, I guess they have to learn patience, and they did.

• 1:48:59Kate Shaw?

  Great.

• 1:49:00Melissa Murray?

  So, some housekeeping before we go. As is apparent from our favorite things, we love meeting stricties. And if you are a West Coast strict scrutiny listener, have you ever thought to yourself, I would like to see strict scrutiny live? I wish this expert legal analysis peppered with insults to Samuel Alito's character were happening live before my very eyes. You are in luck. We are bringing the show to beautiful Los Angeles on March 7 at the Palace Theater. And even if you're not on the West Coast, you could probably use some sun in March. Our show in San Francisco sold out, so grab your tickets to the LA show now before they're gone at crooked.com/events.

• 1:49:38Kate Shaw?

  So you've seen the headlines out of Venezuela, now hear directly from Venezuelans. So on today's episode of Runaway Country, our friend Alex Wagner is talking with people about their hopes and fears for what comes next. She's also joined by Jon Favreau and Ben Rhodes to break down Trump's escalating imperial ambitions. Listen now in the Runaway Country feed or on YouTube and subscribe so you don't miss an episode.

• 1:50:05Leah Litman?

  Strict Scrutiny is a Crooked Media production. Hosted and executive produced by me, Lea Littman, Melissa Murray, and Kate Shaw. Our senior producer and editor is Melody Raul. Michael Goldsmith is our producer. Jordan Thomas is our intern. Our music is by Eddie Cooper. We get production support from Katie Long and Adrian Hill. Matt DeGroot is our head of production. And thanks to our video team, Ben Heathcote and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app and on YouTube, at Strict Scrutiny Podcast, 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.

• 1:51:00Speaker 10

  On election night, we will all be feeling a lot of feelings. Do not spend it alone. Spend it with me, Alex Wagner, for Crooked Media Presents: Live Election Results. We're gonna have Jon Favreau, Jon Lovett, Tommy Vitor, Stacey Abrams, Dan Pfeiffer, Aaron Ryan, and many more special guests to be announced. And they're all gonna help us make sense of what's happening as the election results roll in. So here's what you need to do. Subscribe to Pod Save America on YouTube and tune in on Tuesday, November 3rd, at 9:00 PM Eastern, 6:00 PM Pacific, for hot takes, catharsis, and as many results as we can possibly analyze.

• 1:51:40Speaker 11

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