Can America Pull Back From the Brink of Autocracy?

Leah kicks off the episode with repeat guest Rebecca Ingber of Cardozo Law to discuss the wild illegality–both domestic and international–of Trump’s regime change operation in Venezuela. Then, Kate, Melissa, and Leah welcome Princeton professor and expert on the rise of modern autocracies, Kim Lane Scheppele to break down how Trump is consolidating power over the executive branch and the courts. Leah next catches up with president and CEO of Democracy Forward Skye Perryman on some of the legal developments over the holidays, including challenges to Department of Education funding cuts, the freezing of childcare payments to Minnesota, and a near-total abortion ban for veterans. Finally, the hosts speak with Demand Justice's Josh Orton about the worrying trends his organization is seeing among Trump 2.0’s judicial nominees. Kim’s favorite things: An “Almost Sacred Responsibility”: The Rule of Law in Times of Peril https://judicature.duke.edu/articles/an-almost-sacred-responsibility-the-rule-of-law-in-times-of-peril/, Gerald J. Postema (Judicature); Judge Harvey Wilkinson’s opinion https://www.ca4.uscourts.gov/docs/pdfs/251404order.pdf?sfvrsn=b404b209_2 in Abrego Garcia v. Noem; Judge William G. Young’s opinion https://knightcolumbia.org/documents/ahmr9jfap2 in AAUP vs. Rubio; Sara L. Ellis’s opinion https://law.justia.com/cases/federal/district-courts/illinois/ilndce/1:2025cv12173/487571/281/ in Chicago Headline Club v. Noem; The Dual State https://bookshop.org/p/books/the-dual-state-a-contribution-to-the-theory-of-dictatorship-ernst-fraenkel/53d8d232e332b285?ean=9781616190699&next=t, Ernst Fraenkel; The Origins of Totalitarianism https://bookshop.org/p/books/the-origins-of-totalitarianism-with-a-new-introduction-by-anne-applebaum-anne-applebaum/a2326e15ca8f90fc?ean=9780063354487&next=t, Hannah Arendt 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.

• 0:00Leah 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 DC and

• 0:45Leah Litman?

  virtually, 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 belief 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.

• 1:54Leah Litman?

  Hi all, Leah here. We have a great episode in store for you featuring a conversation with an expert, the expert on how autocrats use law and courts to turn democracies into autocracies, an update about all of the legal Grinch moves the administration tried to pull over the holiday season, and a conversation about Trump's judicial nominees in the second term. But before we get there, we all woke up Saturday morning to learn that the FIFA Peace Prize recipient himself, President Donald J. Trump, the Dove, had launched a military invasion of Venezuela and kidnapped its president, Nicolas Maduro, and his wife, Celia Flores, who the Attorney General subsequently told us are being charged with crimes in the United States. We knew you all would want to learn about this, so we are incredibly thankful that Rebecca Beck Ingber, professor of law at Cardozo and former counselor on

• 2:38Leah Litman?

  international law at the State Department, has once again agreed to get us all up to speed. Beck, welcome to the show again, and thank you so much.

• 2:45Speaker 02

  Thanks so much for having me.

• 2:47Leah Litman?

  So let's get down to business, the business of illegal wars and regime change. So what happened that we know of?

• 2:54Speaker 02

  So I had the good fortune of being jet lagged, woke up at 4:30 a.m., and I made the mistake of checking my phone, which you should never do. And someone had sent me a Truth Social post from the president claiming that he had carried out airstrikes against Venezuela and its leader, President Maduro. And that's a direct quote, and that's important, so we'll talk about that. So he claimed that the US government had captured Maduro and his wife, flown them out of the country. And we later learned their destination is the United States, is apparently New York. And so I, of course, hopped on the news, and there have been many reports confirming explosions in Caracas and neighboring areas. And the Attorney General, Pam Bondi, has now announced an indictment, a new indictment

• 3:39Speaker 02

  in the SDNY, the Southern District of New York. And she says that Maduro has been charged with narco-terrorism conspiracy, cocaine importation conspiracy, possession of machine guns, that one threw me a little bit because he is, of course, at least a de facto head of state, conspiracy to possess machine guns and destructive devices against the United States.

• 4:00Leah Litman?

  So do we know anything about the purported legal authority for this strike? And again, by "strike," I'm just using that as a shorthand for kidnapping a foreign leader and his wife at gunpoint and via bombings as part of what the president himself called a "large-scale strike"?

• 4:19Speaker 02

  Yeah, there's no legal authority for the strike. It's a violation of both international law and domestic constitutional separation of powers. But we know a little bit about what the administration is claiming thus far. So the most detailed statement I've seen on the administration's legal position came from Senator Mike Lee, who had apparently just gotten off the phone with Secretary of State Marco Rubio, who's also dual-headed as the National Security Advisor, which might be handy when you are trying to impose your pet projects on the government. And Senator Lee said, "Well, there's nothing to worry about here legally. This was simply a law enforcement operation to execute a warrant. It likely falls," he said, "within the president's inherent Article II authority." And that's a pretty big claim itself.

• 5:04Leah Litman?

  Yeah.

• 5:05Speaker 02

  He's claiming that the president can invade a country, kidnap their leader, and that DOD can just bomb its way in

• 5:12Leah Litman?

  Yep.

• 5:13Speaker 02

  as a means of protecting the people who are doing that.

• 5:15Leah Litman?

  So, yeah, where to start? Just want to note that Democrats confirm Marco Rubio unanimously. Also, how much the goalposts have changed, because I think Mike Lee later said, you know, "This is just going to be in and out." But as we'll get to by the end, it turns out it's not going to be in and out. And there's both, I think, an international law question and a United States law question. I guess, which do you want to start with?

• 5:39Speaker 02

  We can start with the international law. And it's pretty direct. So the UN Charter prohibits the use of force as a tool of policy. And this is, in my view, the backbone of the entire modern rules-based international order between states. So the use of force is prohibited under the UN Charter with the narrowest of exceptions. The state has a UN Security Council resolution, which we obviously don't have here, and self-defense against an armed attack. And this rule is really what separates, in my view, the modern world from what came before, where states could use war as a tool of policy. So in this case, there's no UNSCER, there's no UN Security Council resolution. Venezuela committed no armed attack against the United States. There's not an imminent armed attack.

• 6:22Speaker 02

  There's no basis for self-defense. Now, it is possible that the US government, if it's inclined at all to make an international law claim, might try to argue Well, would argue, has stated that Maduro is not the legitimate leader.

• 6:36Leah Litman?

  Right.

• 6:36Speaker 02

  And might try to therefore manufacture a claim of consent from some government they choose to recognize instead. And recognition itself is a political act. The state can recognize.

• 6:48Leah Litman?

  Are they just going to recognize some poster in Venezuela who announces that like they're the government?

• 6:53Speaker 02

  Right, it can't be used, you know, whether or not the state can recognize anyone, right? It certainly can't be used as a loophole to undermine the prohibition on the use of force or other international rules. That would just be an exception that would swallow the entire rule. So that's international law.

• 7:09Leah Litman?

  So that's international law. And I guess like I just want to underscore because we will talk about how there's like no congressional authorization and whatnot for the strike. But what you are saying is even if there was, like, that wouldn't make it legal, right?

• 7:25Speaker 02

  Absolutely.

• 7:25Leah Litman?

  Yeah.

• 7:26Speaker 02

  Absolutely. Congress can't cure an act of aggression by the United States. And in fact, you know, Putin had a thor- domestic legal authorities voted on, but, right, to invade Ukraine, and that did not make it legal as a matter of international law.

• 7:41Leah Litman?

  Yeah. So I guess now shifting a little bit to what might be both somewhat international and US law, and that's something you were alluding to, which is about this claim that it was done in self-defense and in particular, you know, in defense of personnel. What is the law on self-defense, defense of service members? My hunch, not being an international lawyer, right, or an expert on the law of war, is this cannot possibly remotely satisfy it, given that they created the condition needing the self-defense, but maybe I am missing something?

• 8:17Speaker 02

  So self-defense comes up in a lot of ways, and I just talked about sort of a macro way, right? The state can use force in these limited exceptions, and one of them is self-defense of the state when the state has been subject to an armed attack. And as a matter of domestic law, you know, Congress has the power to declare war, the Constitution gives that power to Congress, but it's fairly well settled that if the country were actually under attack, the president can use force immediately to repel attacks on the country. None of that's relevant to your question. Those are the macro self-defense questions. There's then this more complicated possible theory that, that in that same tweet I mentioned from Senator Lee, he might be suggesting, he says the president's acting within inherent authority, meaning Article II constitutional authority, to protect U.S. personnel from actual or imminent attack.

• 9:02Speaker 02

  Now, that's kind of a muddling of international and domestic law. The actual or imminent language sort of speaks in international law, but it sounds like he's talking about a U.S. government claiming to be able to act in self-defense to protect, for example, U.S. personnel, right? And the U.S. has long claimed the authority to protect, for example, U.S. soldiers who are lawfully stationed abroad. If they come under attack, they may respond immediately in kind, right? In this case, that is an absurd fit.

• 9:30Leah Litman?

  Right.

• 9:31Speaker 02

  I said lawfully stationed abroad, first of all, right? The state cannot sort of engage in an armed attack on another country and then backfill a legal defense to that armed attack by claiming that they were merely using force to protect the forces that were invading the other country, right? This is, this is just a circular reasoning and it's, and it's absurd on its face.

• 9:49Leah Litman?

  Yeah. So, speaking of absurdity, I do want to maybe say one or two more things about, you know, U.S. law, because the Trump administration is claiming, you know, this was done to execute a warrant for Maduro and Flores's arrest. You know, just by way of a little perspective, U.S. courts issue warrants all the time. You know, I am not aware that incidental to those warrants, the police can bomb your neighborhood and kill people. You know, excessive force and police violence is a problem in this country, and yet there's no question, this is just a ridiculous perversion of the principle that officers can do what's necessary to execute a warrant. And J.D. Vance, like knower of all things, weighed in on X with a post that began, quote, "PSA

• 10:31Leah Litman?

  for everyone saying this was illegal," which I am pretty sure is like something a drunken college sophomore would say before like dropping trou and peeing in public, but I digress. Vance then said, quote, "Maduro has multiple indictments in the United States and that you can't avoid justice because you live in another country." Beck, I went to law school, you know, I know J.D. went to Yale. I learned about a concept called jurisdiction, and it refers to the idea that court's authority is limited over persons and topics. Like, is that possibly relevant here?

• 11:04Speaker 02

  Yeah, so there's a lot going on here. And what he seems to be suggesting is that somehow because there's an indictment out for an individual, we can therefore invade a foreign country. And that's clear, there's clearly no basis for that whatsoever. But there is something else going on, which is that, you know, which is the jurisdictional question for the courts to actually engage in and try this case.

• 11:25Leah Litman?

  Can I stop you for one second?

• 11:26Speaker 02

  Yeah, sure.

• 11:26Leah Litman?

  I just want to underscore, like, the first point you said, which is just because there's a warrant, like, it doesn't mean we can just invade a foreign country. Like, if Joe Biden issued a warrant to arrest someone, I'm pretty sure the Supreme Court then wouldn't have said, you have the authority to cancel student debt relief, right? Like, the president needs authority, right, to do the things he is doing. Anyways, sorry, you were about to explain how courts were going to assess jurisdiction.

• 11:52Speaker 02

  So that's, that's exactly right. And so, and my guess is the courts won't even address the use of force question at all. And that's because the government may well separately have evidence of criminal activity, and that criminal activity may have had effects in the United States, and that may well be enough for the courts to exercise jurisdiction. For example, if he had been traveling through the United States, putting immunity issues aside, which we'll get to, there would have not been a problem with jurisdiction. And this raises a really interesting question. What about the fact that he was brought here illegally? Do the courts care about this? And it turns out that for jurisdictional purposes, and this is just talking about this indictment in the SDNY, under Supreme Court precedent, the courts aren't necessarily going to look behind how a court ended up

• 12:35Speaker 02

  in their jurisdiction. Lawfully, unlawfully, not their business, says the Supreme Court, you're here now. That's what matters. Now, there is this immunity issue. Maduro is surely going to claim head of state immunity to suit in a foreign court.

• 12:48Leah Litman?

  Yeah.

• 12:48Speaker 02

  My best guess there is that the Supreme Court will also decide that the president has absolute authority to not only recognize foreign governments, but to recognize heads of state, or not recognize heads of state, and will leave that question to the president. So while the war is illegal, the use of force is illegal, the kidnapping is illegal. My best guess is those issues will not likely end up in court and the prosecution itself will likely proceed.

• 13:13Leah Litman?

  I mean, in some ways, like what you were saying is like this episode is the ultimate epitome of the administration's contempt for the law and contempt for the public. Like, you know, you mentioned the crimes that Maduro and his wife are being charged with. They include cocaine importation, a crime which we should say, you know, Trump pardoned former Honduran president last month. You know, they also are being charged with the machine gun crimes, which, you know, by the way, some Republican appointees maintain is a constitutional right and the regime's position, like our regime's position seems to be foreign leaders can be tried in US courts, but the leader of the US cannot. And I don't see why having assault rifles as a head of state is any less of an official act than overturning the results of an election, you know, part of which the Supreme Court

• 13:57Leah Litman?

  said were official acts of the president that he was entitled to immunity for. Okay, so I know we've been talking about the law a lot and I guess one more kind of legal point, like we know so much of what they are saying is absolute bunk. Like, why they are saying they intervened here, even that wouldn't make it legal, but it's also just not true. And so I wanted to play two clips from the president's Saturday morning media tour on state TV, i.e. Fox. Here is the first.

• 14:29Speaker 03

  I've seen what happened. I mean, I watched it literally like I was watching a television show. And if you would have seen the, the speed, the violence, you know, they say that, the speed, the violence, they use that term. It's just, it was an amazing thing, amazing job.

• 14:46Leah Litman?

  He's launching attacks to my mind, like he thinks they're cool, right? Like very wag the Donald. And here he is explaining why China isn't going to object to the attacks.

• 14:58Speaker 03

  Xi and there's not going to be a problem and they're going to get oil, we're going to allow people to have oil.

• 15:04Leah Litman?

  Again, not regime change, can't possibly be that, except it is for oil. And He said.

• 15:11Speaker 03

  But they should say, great job. They shouldn't say, oh gee, maybe it's not constitutional. You know, the same old stuff that we've been hearing for years and years and years.

• 15:21Leah Litman?

  And then when asked, like, what do you think is next for the Venezuelan people? He said, we in the United States are making that decision. Once again, utter contempt for democracy, law, et cetera. And then at his official presser, he announced this.

• 15:38Speaker 04

  We're going to run the country until such time as we can do a safe, proper and judicious transition.

• 15:46Leah Litman?

  To my mind, like, now the unitary executive theories, now, not just that all executive power is vested in the president, or that he gets to exercise Congress's powers too, it's also that he gets to exercise the power of every country he wants. And he also underscored they are prepared to do a second attack, a bigger one, if necessary, as you can hear here.

• 16:05Speaker 04

  And we are ready to stage a second and much larger attack if we need to do so. So we were prepared to do a second wave if we needed to do so. We actually assumed that a second wave would be necessary, but now it's probably not. The first wave, if you'd like to call it that, the first attack was so successful, we probably don't have to do a second, but we're prepared to do a second wave, a much bigger wave, actually.

• 16:39Speaker 04

  This was pinpoint, but we have a much bigger wave that probably won't have to do.

• 16:45Leah Litman?

  At this point in the presser, he shifted to talking about DC, Memphis, Chicago, New Orleans, leaving me wondering, like, given how quickly the goalposts are moving here, right? Hours ago, Mike Lee was saying, we're in and out, now, no, we're going to be running Venezuela. Like, are they also thinking about regime change in DC, Memphis, Chicago, New Orleans? Beck, I guess I would leave you with any final thoughts on this just lawless war kidnapping is the best I have for calling it.

• 17:14Speaker 02

  Yeah, in some of those clips, he's really just shrugging off the rule of law. He's shrugging off the Constitution, not even mentioning the UN Charter, of course. And, you know, international law and the use of force space is largely policed by the outrage of other states. So one question will be, how will other states react? It's not the breach itself, it's not the violation that erodes the rule of law. It's, you know, the question will be, what will be the responses? And there's a corollary in the domestic separation of power space. Constitutional public law questions, separation of powers, checks and balances. Ultimately, these are policed through the outrage of the public, through Congress. And so on the international law plane, our question's going to be the reaction of states.

• 17:57Speaker 02

  And on the domestic plane, the question is going to be the reactions of the public and Congress. And whether states remain silent out of cowardice, or an agreement with the cause, or an active desire to erode the rule prohibiting the use of force as a tool of policy, the resulting erosion is going to be the same. And that's the same for members of Congress and the public generally. I think we all have to just continuously make noise and say, actually, we still care about the Constitution, or else that shrugging off will prevail.

• 18:30Leah Litman?

  A great note to end on, a perfect segue to the episode we had planned. Beck, thank you so much for joining, especially on short notice. Listeners, please don't go away. After the break is the original episode we had planned.

• 18:45Leah Litman?

  Strict scrutiny is brought to you by Cozy Earth. How are you resetting your home for the new year? Refresh your sheets and towels to start off the new year right. If self-improvement and better sleep is on your list for New Year's resolution, then Cozy Earth is the first step. If you listened to our Favorite Things episode, you know how obsessed I am with the Cozy Earth cuddle bubble blanket. And it's not just me. My partner and my dog are also totally into it. It's basically whoever gets to the couch and the blanket first. Like Lord of the Flies, but with plush items. Now that it's super cold here in Michigan and in the new year, the Cozy Earth blankets are even more important. I seriously cover myself in that cuddle bubble blanket every opportunity. I get. It's like a waffle pattern, but super soft and heavy enough to make me feel

• 19:28Leah Litman?

  like I'm being hugged. If you want to try out Cozy Earth, great news, they are offering you a risk-free purchase because they know you'll love their stuff. They have the 100 Night Sleep Trial. Try them out, and if you don't love them, return them hassle-free. But trust me, you won't want to. And they offer a 10-year warranty because once you feel this level of comfort, you'll want it to last a decade. Start the new year off right and give your home the luxury it deserves and make home the best part of life. Head to cozylearth.com and use my code STRICT for up to 20% off. That's cozylearth.com code strict. And if you get a post-purchase survey, be sure to mention you heard about Cozy Earth right here. Refresh your routines with comfort that makes every day feel like a new year. Strict scrutiny is brought to you by MASH. The older I get, the more I find myself wanting

• 20:13Leah Litman?

  to be more intentional about the way I live, eat, and take care of my body. Seriously, I have to do so much extra to keep myself as active and healthy and as in shape as I was even just a few years ago. I'm always looking for an on-the-go protein snack that satisfies me. I need energy to get through the day these days, and now I found one that helps me live intentionally, too. MASH Bars. MASH joined forces with the world's top scientists and functional nutritionists to go beyond your average protein bar. Each MASH Bar is made with ingredients that support brain health, like ashwagandha, lion's mane, collagen, and omega-3s. MASH Bars also actually taste great, and they come in nine mouth-watering flavors, including three new plant-based flavors: chocolate chip cookie, hazelnut chocolate chip, and peanut chocolate chip. But here's the best part to make you feel

• 20:58Leah Litman?

  good. MASH donates a portion of all proceeds from your order to fund gender-based brain health research through the Women's Alzheimer's Movement. Why gender-based? Well, 2/3 of all Alzheimer's patients are women. MASH is working closely to close the gap between women and men's health research. MASH Bars fit into my routine in the morning. They're a light enough snack for me to have before I swim, and they also fit nicely in the afternoon. They give me enough fuel without weighing me down. If you want to find ways to give back to others and fuel your body and your brain, MASH Bars are the perfect choice for you. Head to mashlife.com/strict to save 20% off.

• 21:33Leah Litman?

  Plus free shipping on the Best Sellers Trial Pack or the new Plant-Based Trial Pack. That's 20% off plus free shipping on either the Best Sellers Trial Pack or the Plant-Based Trial Pack at M O S H L I F E dot com slash strict. Thank you, Mosh, for sponsoring this episode.

• 22:06Kate Shaw?

  Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I'm Kate Shaw.

• 22:12Melissa Murray?

  I'm Leah Littman. And I'm Melissa Murray. And guess what? It's a new year here at Strict Scrutiny, but as they say, new year, same court, which means that before the Supreme Court kicks off and gets back into gear, we thought we should kick off the calendar year with a much-needed discussion to contextualize what's been happening over the last year in the executive branch and actually what's been happening with this court over the last 10 years. And we really wanted to do this because there are some folks in the legacy media, no names, who seem rearing to go with their, isn't the Supreme Court actually really good right now, takes whenever the court does something that is questionable or even mildly okay,

• 22:56Melissa Murray?

  like ruling against the Trump administration on some of these matters, even as they go even further to expand the president's powers and others. So they have already begun their whole, actually, the court is really trying to rein in this court by giving Congress more room to rein in this president, which is actually kind of hilarious. But we wanted to maybe take a step back from all of that noise and really provide you with a conversation with a scholar who actually is an expert on the idea of executive power, the way that executive power can easily tip into autocracy, and exactly how modern autocracies come into being, and how they use the law and the courts to achieve their ends.

• 23:38Melissa Murray?

  This is someone who can tell us everything that we need to be on the lookout for, the signs we ought to be recognizing, and so much more.

• 23:46Kate Shaw?

  And that person is none other than Kim Lane Shepley. Kim is the Lawrence S. Rockefeller Professor of Sociology and International Affairs at the Princeton School of Public and International Affairs and the University Center for Human Values at Princeton. She's also a faculty fellow at the University of Pennsylvania Law School. And she is someone whose academic work and popular commentary is absolutely indispensable at any time, but in particular, right now. We are so happy to have you on the show. Kim, welcome to Strict Scrutiny.

• 24:14Speaker 07

  Lovely to be here. I hear you guys all the time. Nice to actually be talking to you.

• 24:19Leah Litman?

  Kim, are you a longtime lurker, first time caller? Is that what this is?

• 24:24Speaker 07

  I'm a, I listen to your show every week, sometimes more than once, just to make sure I got it all.

• 24:29Leah Litman?

  That's exactly right.

• 24:32Leah Litman?

  Very good. So, you know, as Kate and Melissa suggested in the intro, Kim is the leading scholar on how democracies use law and constitutionalism to morph into autocratic systems of government. So, Kim, can you get us started just by outlining for our listeners what autocratic legalism is?

• 24:53Speaker 07

  Yeah, so a lot of people think that the way democracies fall is with tanks in the streets. And actually, we're actually having some of that in the US right now. But what tends to happen in most other countries when you get an aspirational autocrat who's elected to office is that they entrench themselves in power forever, and they do so by loosening restraints on the executive branch. And a big part of that is also capturing usually the highest court in the country. Let me just say that I worked for four years at the Hungarian Constitutional Court, one year at the Russian Constitutional Court. Those are both courts that have been captured. So I've worked inside these institutions and seen them fall. And since this is a show about the court,

• 25:35Speaker 07

  let me just say one thing that tends to happen to courts in these contexts. So the first thing that tends to happen is there's a swap out of justices. There's a change in the way that justices are appointed. And, you know, as we saw in Trump I, there were, he got the unusual gift of three justices, but two under, shall we say, irregular circumstances. That's the kind of thing you see at the beginning of constitutional capture. And then what you see, and this is, you know, when people think it's a captured court, they think that it will stop looking like a court or acting like a court. And actually, this US Supreme Court is kind of... Shadow docket cases are not actually giving us reasons. But the thing about capture courts is that they don't rule in every single case

• 26:20Speaker 07

  for the government they're trying to defend because they want to preserve their appearance of independence. They want to preserve the fiction that they're still actually operating in law rather than politics. So what you'll typically see is all the crucial things that have to do with executive power. That lane, everything will go in favor of the aspirational autocrat. But every court has a mixed agenda. So you'll see, for example, some rights cases that may not be so crucial to the consolidation of executive power. And those might actually be the ones that the court picks to say, look how independent we are, we're going to rule against the executive on this. So it's really crucial in looking at these cases of autocratic capture and the courts

• 27:04Speaker 07

  to separate out the, what's loosening the restraints on the president cases from the everything else cases.

• 27:12Kate Shaw?

  It is so interesting to hear you say kind of irregularity or changes in the mechanisms of appointment because some of our younger listeners actually might not remember the circumstances under which both Neil Gorsuch and Amy Coney Barrett joined the court. But can you just remind everyone of that? And then you are saying that that is, even though it shared certain features with previous appointments, or both of them did, they were anomalous in pretty important ways and that that matters a lot.

• 27:37Speaker 07

  Exactly. So the seat that Gorsuch now occupies came open under President Obama pretty far ahead of the election. It was what, you'll remember, 14 months or a year or something?

• 27:47Leah Litman?

  It was in February, yeah.

• 27:48Speaker 07

  February, right.

• 27:49Kate Shaw?

  Almost a calendar year.

• 27:50Speaker 07

  Exactly. And so Obama came forward with a nominee whom the Senate refused to confirm. They just let the thing die. I mean, they just did not act. And in so doing, they saved that position for whoever was going to be the next occupant of the office. I'm doing this all without proper names to emphasize the procedural irregularities rather than the personalities, right? And so sure enough, Donald Trump wins and he gets a free seat as soon as he gets there, even though that seat should have been filled by Obama. Okay, and then the argument was, we never let any president nominate someone so close to an election because we want the court to follow the election returns and blah,

• 28:31Speaker 07

  blah. Okay, so then what happens is, of course, Ruth Bader Ginsburg dies really right before the end of Trump's term. And rather than say what they had just said before, which is, an opening comes this close to an election, let's wait for the election returns, they, Trump immediately speeded up a nomination, and the nomination's process and the hearing was literally going on during the presidential campaign. Yeah. So Trump got his third justice in the nick of time, right before he was voted out of office. So, you know, if they were following the rule that they were going to use for the Obama judge, they shouldn't have named the third Trump judge. But they, they compromised on both scores and Trump gets three judges. That's the kind of thing you see.

• 29:15Leah Litman?

  So as you were talking about, you know, how courts behave in autocracies, you know, you distinguish between cases on presidential power and autocratic control on one hand, and individual rights on the other, where they might be more inclined to kind of show some signs of independence, or at least some superficial appearance of independence. So could you elaborate on the distinction between those two kinds of cases, just so we know what to look for, you know, as we start to see more rulings involving the Trump administration?

• 29:48Speaker 07

  Yeah, so I guess the case I would keep my eye on now is, of course, birthright citizenship. That's obviously something Trump really wants. The, shall we say, doctrinal support for his position is rather thin, as you repeatedly said.

• 30:03Leah Litman?

  Rather thin is very generous. That's the reading part, Kim. Like, if you can read, it's thin.

• 30:09Speaker 07

  I am trying to be diplomatic, right? And so there's nothing there, right? And so that's the kind of case where they might deal him a loss. Because frankly, whether he wins or loses on that is less crucial to whether he's going to stay in power forever. It's part of his immigration agenda, it's part of a lot of other performative cruelties that he's up to that the court has endorsed already. But that's the kind of case where you could imagine him, you know, losing, right? So it's that kind of thing. And actually, you know, I mean, I'm thinking of some of the, where the courts where I worked, you know, when Viktor Orban was consolidating power in Hungary, this, the Constitutional Court Voted for everything that he wanted to do to stay in power forever.

• 30:52Speaker 07

  And then every once in a while, and this may be something we're going to see coming up. It's too early, but what would happen is that Orban would change his mind about something. But he didn't want to appear to backtrack. And then suddenly there would be this case that would come to the court and the court would declare the thing that Orban found inconvenient, unconstitutional. And then he would say, I'm following the law, but it was something he wanted them to do anyway. And he was signaling through back channels, he wanted them to override something. So the more entrenched these governments get, the more they may find there are things they want to backtrack on and redo, and then the court's useful for that.

• 31:28Melissa Murray?

  Well, can we take a beat on that? This is a Supreme Court podcast, obviously, so we are focusing on the roles of the court. You just mentioned this example from the Orban regime in Hungary. Are you seeing similar kinds of examples in our system where the president is either backtracking on something or there's some new kind of thing that he wants to do? And there seems to be a kind of backchanneling way in which the courts are approached to make this happen? Or is that something that is really too far in the offing?

• 31:59Speaker 07

  No, the place where I see it is actually in the tariffs case. So the court could have sped that one up, right? It's sort of doing that on a more normal schedule. It's slowing it down. And what Trump is doing in the meantime is redoing most of the tariffs he cares about under other legal authorizations. So that by the time the court rules against him, which they might to prove their independence, it won't matter very much because he's actually taken all the tariffs he cares about and put them under different legal headings, right? So, but the court is slow walking to give him a chance to do that. And then they may hit lower the boom on the tariffs, but it won't matter. Right, so you see this kind of, you know,

• 32:41Speaker 07

  it's almost as if the executive walks with one foot and the court walks with the other and they're paying attention to the gate. So that's one place where I kind of see that here.

• 32:50Kate Shaw?

  Can I ask you, Kim, to follow up on something else you said in your first answer, which is another indication that we are seeing unfold something that looks like a playbook used elsewhere is the court's increasing turn to the shadow docket. And we have talked extensively and very critically about the kind of fundamental lack of regular order, failure to give reasons to do the basic things that courts are supposed to do. But what I don't think we have brought out is that this is not happening just at the US Supreme Court, or that it has certain kind of parallels to moves away from regular order, or to innovate using these kinds of mechanisms in other places. So should we understand the shadow docket in broader terms than just as a real break with the way this Supreme Court has typically done its work?

• 33:35Speaker 07

  Yeah, so I think absolutely. So for two reasons. I mean, one is that procedural outs are very often ways of making substantive decisions without appearing to make substantive decisions. And that's something I've seen in other courts where suddenly they decide they don't have jurisdiction to hear something they've always had jurisdiction to hear, allowing the thing to proceed, for example. So, you know, one of the things that we see here, I wrote a column on this for The Contrarian called "The Supreme Court Orders Fish Soup."

• 34:06Kate Shaw?

  Yes, we've cited that. It's amazing.

• 34:08Speaker 07

  I know.

• 34:09Kate Shaw?

  Truly love it.

• 34:10Speaker 07

  It's like, you know, if, basically if the court is lifting stays and allowing the destruction to happen, they appear not to have ruled on the merits and not to have fundamentally changed settled law, but by the time they get around to deciding questions, and they may, well, this could be another one of those areas where they may decide, you know, oops, you know, an agency shouldn't have been canceled when they get to the merits. But there's nothing left, there's just rubble, right? And so because they're allowing the destruction to proceed. They're actually limiting the remedies that may be made available when they finally make the decisions, right? So one thing I've written a lot about in context of the US, mostly the Guantanamo

• 34:50Speaker 07

  cases and other countries, is that when courts are pressed politically between two competing sides and they really don't want to appear to be partisan to one side or the other, they'll give one side the rule and the other side the remedies. So, for example, in all the Guantanamo cases, you know, when the headlines read, you know, "Court slaps around Bush," right? When you looked at what happened to the actual people who brought the cases, it was always something worse than before they started.

• 35:18Speaker 08

  Yeah.

• 35:18Speaker 07

  It's that kind of thing. And so what we might find here is this in reverse, right? Which is Trump is going to win on the remedies because of what's happening on the shadow docket, and then they may actually come out with some cases on the merits, which won't matter at all because whatever it is they decide will have already been destroyed. Right? So look also for this kind of thing that happens in lots of courts. One side gets the rule, the other side gets the remedies.

• 35:42Leah Litman?

  So, this is a question that I often receive, and I know we have talked a little bit offline about, which is, in the event or when the court inevitably rules against Donald Trump in some of these cases, be it the tariff case, be it birthright citizenship, won't, you know, we all have to eat crow because this will all be reflective of some grand master plan by which the court accumulated the capital necessary to rule against Donald Trump? It was just keeping its head down, right? Waiting for the right case to do so, and it just had to do all of this to take a stand? And aren't you so happy that they just gave Trump everything he wanted for a year and then protected birthright citizenship?

• 36:26Leah Litman?

  I guess, what do you say when you get those kinds of questions? Because I just want to pull my hair out.

• 36:31Speaker 07

  Yeah, well, this is what the Hungarian court did after it was packed. This is what the Russian court did after it was packed. You know, this is what packed courts do, right? Is that they have to make it look like they aren't just politicians. And so they're going to figure out what are the cases that we can actually decide that will allow the autocrat to continue in power and to continue to consolidate everything he cares about while still us appearing judicial and above the fray. So, in fact, it's exactly that, you know, cherry picked kind of approach, you know, where they're gonna, there're gonna be a couple of cases. And then what'll happen, you'll know this, I mean, all of our law professor colleagues will say, you see, Roberts really was an institutionalist. Or really, the shadow docket didn't, you know, foreshadow what was gonna happen on the merits.

• 37:16Speaker 07

  And, you know, and there's so many, and here's the, here's the good thing and the bad thing about that, right? We have so many colleagues and people who specialize in focusing on the Supreme Court, who have so much at stake in believing that law is still going on. You know? Yes. And every little sign of it will be taken as hope that in fact, you know, the whole thing didn't die, you know, in the last decision where we saw it die. Okay, so, so let me confess something, which is that I haven't taught American constitutional law since Bush v. Gore. Okay, I have, like, I'm the canary in the mineshaft. I got out then. I worked on that case, I was in Tallahassee, I was working on what would have been the sequel if the court had gone the other way.

• 37:57Speaker 07

  And you could just see that that was a case in which the court was willing to simply vote Republican. Yeah. And we have a court that is continuing to simply vote Republican. How else to make sense out of the Texas gerrymander case? And if they come out with the opposite result in California on, on the basis of some made up doctrine? I mean, this is a court that is mostly voting Republican on all the cases that are crucial to the consolidation of executive power. And I hate to say that because, you know, I'm sometimes a political scientist. I'm sometimes a law professor. The law professor in me wants to say they're still doing law. But I think they got off that boat a long time ago. And I think that's where we are. And they will occasionally do law-like things

• 38:42Speaker 07

  just to kind of tease us and bring us on board. Haven't we all dated guys who did that, right? They're just terrible. And then they kind of give you like the little hint that maybe they love you after all. They're breadcrumbs, is what you're telling us. They're breadcrumbs. It's law, baby. It's just like bad boyfriends, right? All right.

• 39:00Melissa Murray?

  I'm like, the whole idea that they've jumped the law boat a long time. I don't even think they jumped off. I think Pete Hegseth torpedoed the law boat a long time ago.

• 39:10Speaker 07

  With many things.

• 39:11Melissa Murray?

  I am actually really interested in this idea of them using their merits docket decisions to sort of buy themselves some goodwill, consolidate capital for themselves, even as their shadow docket decisions have already dismantled the thing, right? So I'm thinking precisely of the Department of Education, like, you know, so what if they come back later and say that was completely unlawful, like, they've dismantled the Department of Education. It's going to take a lot of work to rebuild that. Do you ever see a scenario where they might come back with some of these merit decisions, but rule against the president,

• 39:51Melissa Murray?

  but there's actually a new administration in place? And so the impact is doubly bad?

• 39:57Speaker 07

  Yeah, well, they've already done that, you know, and this is something, I mean, something else I've seen in comparative perspective. They may suddenly decide that the civil service will be dug in after all of the Trump appointees have infiltrated themselves all the way through. This happens, this happens in almost every place where autocratic consolidation has occurred, because you'll find that the, that the loyalists to the prior government burrow themselves into protected positions. Then the new pro-democratic government comes in and the courts say, no, no, no, you can't touch all those offices because they're buffered and protected. Suddenly we'll get back four clause dismissals, or, you know, or civil service, or something to keep the people burrowed in. So I completely expect that to happen. Now, what I'm worried about is that we don't get another government. I mean,

• 40:42Speaker 07

  I'm, you know, I hate to say this, but I'm really on the more pessimistic side of this.

• 40:47Melissa Murray?

  Welcome to the show, Kim.

• 40:49Speaker 07

  I know. I'm worried about the midterms.

• 40:52Melissa Murray?

  You're among fellow travelers.

• 40:53Speaker 07

  And I'm worried about 2028. I mean, I think it's absolutely not at all clear that we won't get a third term of Trump, and I think it's absolutely not clear that we'll have free and fair midterms. And I think we're not paying enough attention to that, to all the infrastructural work going into that. And the Texas gerrymander case is just a little sign that we're not going to get much help from the courts. From this point.

• 41:18Kate Shaw?

  Yeah, I mean, I think every time the sort of the press kind of breathes a sigh of relief and says, well, he, Mike Johnson tamped down the third term talks, so we don't have to worry about it anymore. I'm just like, what, what are we doing here? Like, of course we have to worry about it.

• 41:29Speaker 07

  Trump is still giving out Trump 2028 hats to every dictator that visits him in the Oval Office.

• 41:33Kate Shaw?

  Absolutely.

• 41:33Speaker 07

  They're selling this merch and the White House gets shocked.

• 41:35Kate Shaw?

  We have to take this extremely seriously.

• 41:37Speaker 07

  Yeah.

• 41:38Kate Shaw?

  And to do it now. I completely agree. Well, so I wanted to ask a question that maybe the premise is unduly optimistic, but I'm going to pose it anyway. And that is, we've been talking a lot about the kind of comparative example of Hungary and Orban, which obviously you're an enormous expert in. I wanted to ask you, though, to also bring out a little bit your comparative expertise in the context of Brazil. And the case against Bolsonaro is, I think, a really important example of accountability for trying to overthrow a government. So obviously it has certain resonance to the American experience. And I know-

• 42:08Leah Litman?

  The Supreme Court didn't stay that prosecution on the shadow docket.

• 42:12Kate Shaw?

  Didn't. Wow. And so we should give them enormous credit for that, shouldn't we?

• 42:15Leah Litman?

  Exactly.

• 42:17Speaker 07

  They tried. You know, Trump tried.

• 42:19Kate Shaw?

  Yeah.

• 42:19Speaker 07

  They sanctioned the judge presiding over the trial. I was there when that happened. Yeah.

• 42:24Kate Shaw?

  So I do want you to talk about that because I think that's all a pretty wild story. But I also think, taking a step back, if we are ever on the other side of this, which I think you're right, is a big if, there will be, I think, enormous debates and questions about whether and how to seek accountability. There are obviously people, I think, even on the left, who think, you know, maybe in good faith that Trump supporters actually feel like he was targeted and that in some ways is responsible for where we are. I in no way am endorsing that. I am just saying there will be debates about whether a clean break and forward looking kind of posture is better for democratic and constitutional restoration, or whether backward looking accountability is required. So, welcome to, you know, weigh in on that. But I am just curious about sort of what you think about

• 43:07Kate Shaw?

  Bolsonaro in the context of those likely future debates, if we are lucky enough to ever be having them.

• 43:12Speaker 07

  Yeah, well, so first of all, it could be another, the system worked and we issue a pardon, which is the Watergate scenario, right? So what happened in Brazil? So what they have is a constitutional system built for resilience because they had a dictatorship before. Yeah. So as we think about stuff going forward, I think we also need to think about institutional reform, because we're gonna have a lot of rubble and there's no point in trying to patch it back the way it was. Yeah. So the reason why they could do this in Brazil is that many modern constitutions, particularly ones in dictatorship, have what they call fourth branch institutions. Yeah. And fourth branch institutions are walled off from political influence, kind of the way courts are supposed to be, walled off from political influence.

• 43:54Speaker 07

  And in Brazil, the federal police and the federal prosecutor are fourth branch institutions. So when Bolsonaro tried to overthrow the government, there was a plot that they uncovered, which was far worse than what we saw on their January 8th, which was a copy of our January 6th. They literally had a plan to poison the president and shoot one of the Supreme Court justices. In fact, they would have done it already by the time they uncovered the plot, except that Marais, the judge they were gonna shoot, happened not to come home on time the day that the assassins were waiting outside his house. Okay, so the federal police uncovered this plot, they put together all the evidence, they published all the evidence, they published the entire police dossier in November of last year.

• 44:37Speaker 07

  It went then to the prosecutor's office, who had to decide whether to bring charges, politically buffered prosecutor, not our DOJ, right? And the politically buffered prosecutor then came out with a detailed indictment, explaining what charges would follow from what the police had found. The prosecutor then looked over this file, brought forward a detailed indictment, and then the way these cases go, if it's a head of state, is they go to the Supreme Court for first instance trial, and the Supreme Court has to decide whether to take the case, based on the record and the indictment. Also, an independent institution, so you've got three independent institutions. All of it was being done in public. The trial was so much in public.

• 45:19Speaker 07

  Here's one outrageous thing about the Brazilian Supreme Court, in case you don't know it. They don't just have oral arguments in public, they don't just run the trial in public. They deliberate in public. They have their own TV channel. People watch this stuff. They come in and, yes, they deliberate in public. And so... They were able to reach this judgment, finding Bolsonaro guilty. He was sentenced to 27 years in prison. But here's the problem. Brazil, like the US, is still a 50-50 split country. There's an election next year, and Bolsonaro's people may well win the Senate. They have an upper chamber like we do, which represents the regions.

• 46:00Speaker 07

  And the Senate needs only a simple majority, without the involvement of the other house, to impeach judges of the Supreme Court. And all the polls are showing that Bolsonaro might win the Senate next year, in which case all these judges may be gone. Okay, so before you say this is the great turnaround and the great example, one thing that we know about countries that have had these episodes of autocracy is that it's extremely hard to come back because the supporters of these autocrats are still around. They burrow in, they occupy choke points, they can still win elections. And so Brazil's a great example, buffer institutions that did their work,

• 46:42Speaker 07

  and a bad example because they made it very easy to impeach judges. So it's a mixed story.

• 46:48Melissa Murray?

  Yeah. Kim, not all governments that come under attack from these legalistic autocrats actually jump the shark and tip into autocracy. Some of them pull back from the brink. So what are some of the steps that you can take to put your democracy back on the path to being a democracy, to keep it a democracy going forward? And are we doing any of those things right now?

• 47:14Speaker 07

  The short answer is no. So we're not doing any of those things. And in fact, even the governments that look like they've turned around find it very hard. So another one that turned around is Poland, where they had eight years of autocratic capture. They really destroyed the independence of the judiciary. There are about 3,000 judges who have been appointed because they're political loyalists. The Supreme Court's been captured. I mean, just the whole judicial system is really a mess. New government comes in. They're going to do something to change it. They pass a law. The president, who's a hangover from the prior government, vetoes it. So then they try other things, executive actions that can't be vetoed. And then this this pact constitutional court says it's unconstitutional.

• 47:55Speaker 07

  So they haven't been able to do anything to overcome this pact judiciary. They can't do what they said they would do with their election promises. So they're losing popularity and it's probably the case that the autocrats will come back. It's very hard in these circumstances. So what can you do? The thing you can do is try to idiot proof things before they happen. So we're seeing like in Germany, which we lost the chance to do, frankly. I mean, a lot of us were talking, you know, in the last days of Biden, when you could see that this was going to happen. There were things we could have done and didn't. So let me give you a good example, which is Germany sees now that the AfD, the far right party, is likely to have a blocking vote in the parliament for constitutional judges to the court.

• 48:38Speaker 07

  So what they did before the AfD got the blocking vote was they amended the constitution to essentially eliminate the the threat of the blockage by saying, okay, we need a two thirds vote. If we don't get it on several rounds, then it will switch and go to the upper house and they get to vote by two thirds. So they developed a trap door around the block they could see coming. And that means the AfD can't block judges going on to the constitutional court now. They got out ahead of it. We need, I mean, we should have done it already. You know, it's going to be a real struggle to figure out how to get this back. But this is why we need to think ahead a little bit to how we can figure out, you know, what are the plausible political things we can do?

• 49:21Speaker 07

  So that if we ever get the chance to build back better, we don't build back the same. And we build back better enough that we can't again fall back into autocratic capture. That's the challenge.

• 49:33Kate Shaw?

  All right, well, Kim, we are going to ask that you come back at some point in the year 2026 and have a more forward looking conversation with us about some of the concrete steps we can take to start to claw our way out and also to guard against recurrence. But that was an incredibly sobering and useful overview. And we're so grateful to you for taking the time to be with us. Before we let you go, as you know, as a listener, we have been trying to end our conversations on kind of a more optimistic and hopeful note, or at least a constructive note by recommending things to read. And I know you've got a lot of recommendations. So would you mind sharing a few things that would be kind of instructive on the stuff that we've been talking about?

• 50:15Speaker 07

  Yeah, so one of these really inspirational pieces that I read that I just assigned to my students to give them hope and a vision. There's a legal philosopher named Gerald Postama, and he wrote this short piece in Judicature, which I think is a public access magazine. It's called "The Rule of Law in Times of Peril and Almost Sacred Responsibility." And it cuts to the heart of what it is that we mean when we think that we're defending the rule of law. It's just inspirational, and in case you lose your way, it tells you which end is up again. It's really a lovely piece. And the other thing, you know, I, we were talking a little bit before we started the recording. There are a lot of judges now in the district and appellate courts who see that the Supreme Court is gonna lead us into the ditch. Yeah. And they've just decided to write for the public.

• 51:00Speaker 07

  Yeah. They're not even writing for the Supreme Court. And I think one thing we might do is think about, let's compile the greatest hits, right, of some of the decisions that are written for a general public, that are really designed to remind people of why we care about constitutionalism and the rule of law. So, a couple of my nominees here, Judge Wilkinson in the Abrego-Garcia case from, I think it was last March, AAUP versus Rubio, that's the one that starts with the handwritten note saying, "Trump says to have tanks and partons whether you have." I must say, I gave this to my international law students this past semester, and they said, "Judges can write like that?" And I said, "Well, you know, when the ship's going down, you gotta get people's attention, but the whole opinion's worth it."

• 51:42Speaker 07

  Most recently, Judge Ellis in Chicago Headline Club versus Gnome, which is the one where she documents everything ICE has been doing in Chicago, and posts the videos of all of the, of all the things that ICE is doing, that the government said they weren't doing. And we can just like come up with the greatest hits, you know, of some of these decisions. And then if I can take you back to darker times, because sometimes it helps, if you wanna go back, a couple of touchstones for me, so we're in the law lane, right? So if you wanna read, what does fascism look like when it's closing in? Okay, that's not very optimistic, but you know, Ernst Frankel's "The Dual States" is just a very important read. He's a Jewish lawyer, he writes this in 1938 in Berlin, he can't practice law anymore.

• 52:26Speaker 07

  But what he sees is that for the vast majority of Germans, the legal system looks normal. But then there are these people who are just getting picked out and disappeared, picked out and handled differently, which is exactly where we are here, right? And then he says, look, what there is, is what he calls a normative state where everything looks normal. You wake up, the world hasn't turned on its head, and everybody goes along thinking, no problem. And then there are these people singled out. The reason why people again get singled out, he says, is because everyone else thinks it's normal, what they see, right? And so this dual state logic is how the law works to cover up what's happening in plain sight. So mandatory read. Cona Aaron's Origins of

• 53:08Speaker 07

  Totalitarianism is also a great read. So I have a whole list of depressing books. And then we can talk, actually, next time, if we're going to talk about our ways out, there are all these wonderful books about, you know, what you can do. And, yeah, it forms of protest. My husband grew up in the Soviet Union, so we got a lot of good examples. People standing on street corners, holding up quotations from the Soviet Constitution. The government was saying, can we arrest them for saying that? You know, so maybe we could try that. Anyway, lots of things we can do.

• 53:37Melissa Murray?

  Kim, this was, again, very sobering, but exactly the kind of eye-opener that we need heading into 2026. So thanks so much for joining us. It's great to have you here, and we'd love to have you back whenever you're ready.

• 53:50Speaker 07

  Great. Love to see you guys here. Elsewhere and your podcast is such a gift to all of us. Thanks.

• 53:56Melissa Murray?

  Listeners, don't go anywhere. While Kim left us on a cliffhanger about how to fight back, next segment, I'll be talking to someone who has been leading that fight, Sky Perryman, president and CEO of Democracy Forward.

• 54:11Leah Litman?

  Strict scrutiny is brought to you by Zbiotics. This year, I'm focusing on a small shift that makes a huge difference: effortless presence. It sounds counterintuitive, but for me, that means planning ahead, so I can truly live in the moment, especially when enjoying a few drinks. My simple trick for staying balanced is taking Zbiotics pre-alcohol before I have my first drink. I had such a good time at CrookedCon, I got to celebrate at the after-party, and wake up fresh the next day. So I know I need to keep up with this whole Zbiotics thing when I want a night out. So my shift is planning a balanced Night out to ensure a high quality morning after, and I rely on Zbiotics pre alcohol to support that goal. Zbiotics pre alcohol probiotic drink is the world's first genetically engineered probiotic. It was invented by PhD scientists to tackle rough mornings after drinking. Here's

• 54:56Leah Litman?

  how it works. When you drink, alcohol gets converted into a toxic byproduct in the gut. It's a buildup of this byproduct, not dehydration, that's to blame for rough days after drinking. Pre alcohol produces an enzyme to break this byproduct down. Just remember to make pre alcohol your first drink of the night, drink responsibly and you'll feel your best tomorrow. Seriously, my experience at Crooked Con reminded me, I can still have a drink and have my next day. You guys, I had tequila drinks multiple, and with my Zbiotic drink beforehand, I still felt awesome the next day. Look, I won't lie, I was a bit on the fence about pre alcohol, but after we all took shots of our Zbiotics before our actual drinks at Crooked Con, it's a reminder that it's the real deal. Ready to try it? Go to zbiotics.com/strict now. You'll get 15% off

• 55:40Leah Litman?

  your first order when you use strict at checkout. Plus, it's backed by a 100% money back guarantee, so there's no risk. Subscriptions are also available for maximum consistency. Remember to head to zbiotics.com/strict and use a code strict at checkout for 15% off. Strict scrutiny is brought to you by Sundays for dogs. New year, new you. Should always include eating better, right? Well, if you're upgrading and optimizing what goes in your body, then why are our dogs still stuck with the same old kibble routine? Give them Sundays for dogs. Sundays was founded by a veterinarian and mom, Dr. Tori Waxman, who got tired of seeing so-called premium dog food full of fillers and synthetics. So she designed Sundays. Air dried, real food, made in a human

• 56:22Leah Litman?

  grade kitchen, using the same ingredients and care you'd use to cook for yourself and your family. Every bite of Sundays is clean and made from real meat, fruits and veggies with no kibble. That means no weird ingredients you can't pronounce and no fillers. Compared to kibble or other brands out there, Sundays invest 50 times more in its ingredients to ensure premium quality, because your dog deserves food made with care, not in the interest of cost cutting. And the best part, you just scoop and serve. No freezer, no thawing or prep, no mess, just Rich, clean food that fuels their happiest, healthiest day. So you get more of them to share together. As you all know, I am obsessed AF with my dog Stevie. She's promised me she will live forever, which requires me feeding her nutritious and delicious food. She is a

• 57:05Leah Litman?

  picky eater and into the finer things in life. And she likes her Sundays, and it seems to like her, too. Pretty sure she's not had as many eye boogers recently. Make the switch to Sundays. Go right now to sundaysfordogs.com/strict and get 50% off your first order, or you can use code STRICT at checkout. That's 50% off your first order at sundaysfordogs.com/strict. sundaysfordogs.com/strict or use code STRICT at checkout.

• 57:40Leah Litman?

  Welcome back. I'm your host for this segment, Leah, and I am delighted to be joined once again by Sky Perryman, President and CEO of Democracy Forward, one of the organizations that has truly been on the front lines and frontier in holding this administration accountable and making the whole law and accountability thing happen. Welcome back to the show, Sky. It's great to see you. Happy New Year. Happy New Year. It has been a hot minute, and we actually haven't recorded for almost three full weeks at this point. We tried to take a break for the holidays. Alas, fascism does not, and neither can the people fighting it. So I thought, Sky, we'd start by talking about some of the legal challenges that cropped up over the holidays, and then I'll ask you for some big picture thoughts reflecting on the last year and the year ahead. Does that sound like a plan? Sure.

• 58:25Leah Litman?

  Let's do it. Okay, so let's start with litigation over various funding cuts. So I know you're working on litigation involving the American Federation of Teachers, challenging the Department of Education's termination of millions of dollars in funding for full-service community schools. So can you just describe for our listeners what are full-service community schools and why they are important?

• 58:44Speaker 09

  This is really important to so many communities across the country. These schools provide really essential services to families, to communities, to students who need, in some instances, extra educational services. But they're really such a cornerstone. And this is a trend we saw over the holidays, which is the president and the administration making cuts to things that should really not be political or politicized, and doing so at times where they hope, I think, that people weren't paying attention and looking. We're fortunate at Democracy Forward. Our team of lawyers and our partner organizations, we set up a plan to be vigilant, to be paying attention. And so we did bring suit on behalf of a Chicago-based nonprofit and the American Federation of

• 59:29Speaker 09

  Teachers. That suit will continue into the new year. And we also had to bring suit for a range of other funding cuts, including on behalf of the American Academy of Pediatrics, where the administration-

• 59:41Leah Litman?

  So we'll get to that one just in like one, one second. But before we do, I do want to add another kind of holiday season announcement that this administration gave us, just to kind of underscore the point you were making about them really turning the giving season upside down. And this announcement is new. I wanted to flag it, both because it is wildly illegal and will add to the harms of cutting full-service community schools. And that is the Trump administration's announcement of New Year's Eve Eve, that it would be freezing all childcare payments to Minnesota in the aftermath of allegations of fraud by some in the Somali community. Sky, as I said, I know this is super new and breaking. You know, I don't think it's enough or enough time has passed to allow litigation to really get off the ground.

• 1:00:25Leah Litman?

  But I did want to get your reaction to this, especially since you brought up them trying to get cover from the holiday season.

• 1:00:31Speaker 09

  Yeah, I mean, it's really perverse. And let's just say outright, no one wants fraud to occur within the government. And in fact, that's why we're also disturbed that the president, one of the first things he did last year was to fire all the inspector generals, whose job it is to root out fraud and abuse in government. So just to be clear, nobody- That I know of that that supports the the United States and wants to live in our democracy, wants fraud within the government. But this action really slaps of cruelty and of retaliation and retribution. There's no basis for it. Oversight and prosecutions if necessary, based on that oversight. That is typical. That is something that the Department of Justice, when it is not politicized and not acting as the personal attorney of the president, has done for many years.

• 1:01:16Speaker 09

  But this is another one of these situations where you have, you know, children in the state of Minnesota, families that are going to be harmed. You have no basis for some broad brush approach. And then, of course, we do have a lot of concern about how the president has been treating Somali Americans and the the rash sort of statements and retributive and frankly racist statements that have been made. It is possible that there is some fraud, but that is something that needs to be investigated in its own, and you don't take a wrecking ball to an entire program that's going to affect, you know, many, many children and families.

• 1:01:54Leah Litman?

  So you mentioned that no one wants fraud in government. Sky, I worry you might have been too generous there, given some of the pardons this president has issued, you know, to people who were committing some fraud related to government service, you know, George Santos, you know, comes to mind.

• 1:02:09Speaker 09

  That's right. So no one in the pro-democracy community, no one in the pro-democracy community wants fraud in government. I mean, this, this, then that's what I pointed out with the inspector generals. I mean, this president has really aided and vetted and and really taken away so many of the protections that we have to against fraud and against abuse in government. And then, of course, does this gaslighting where he seeks to make statements and very inappropriate sort of broad brush statements about people groups, seeking to target people groups. We know that's a chapter out of an autocrat's playbook. That we see unfold and that you see that here. And then, of course, it's going to be families and children in Minnesota that really are

• 1:02:53Speaker 09

  going to be harmed as a result of this.

• 1:02:55Leah Litman?

  Yeah, and it's not just like the president's like overt kind of racism and xenophobia being directed at the Somali community. It also seems like he has effectively deputized like libs of TikTok and other right wing influencers, right, as effective agents of the government. You know, some of the allegations here are literally based in part on right wing influencers videotaping themselves going to daycares and asking where are the kids and being told to leave. And I'm sorry, if some strange man came to a daycare center with a video asking where are the children, like I would be very disappointed if they were not turned away. But, you know, I digress. Anyway, so you were about to get to the funding case involving the American Academy of Pediatrics.

• 1:03:37Speaker 09

  That's totally right. And one of the themes, I know we're going to get to 2026, but one of the things you're going to see us and others do is we have to not just hold our government accountable and this president and administration accountable. We have to hold accountable the institutions that are aiding and abetting this president and this administration, including that infrastructure that you mentioned, whether it's on social media or whether it's going to be companies that are trying to aid and abet ICE. So I know we'll get to that in a minute, but that's a big theme. But yes, also over the holiday, the president and the administration took aim at programs that are designed for early detection of infant and early childhood diseases and sicknesses

• 1:04:18Speaker 09

  and illnesses, including things like early hearing loss or hearing detection, programs that are aimed at preventing infant and childhood mortality. And brashly canceled millions of dollars of federal funding to those programs. And we, you know, as a result of retaliation and retribution for this administration's disagreement with and hatred of the voices of medicine and science, the American Academy of Pediatrics. And so we're in court on behalf of AAP, seeking to get that funding restored. We've successfully been able to restore funding in a range of these cases where the administration

• 1:05:01Speaker 09

  has retaliated against a professional society as a result of that professional society's, you know. Kind of calling it like they see it with medicine, science and evidence.

• 1:05:12Leah Litman?

  Yeah, I mean, like, this is, to me, the case that almost perfectly encapsulates the RFK, "How many kids did you kill today?" meme. I mean, you know, here, AAP, the American Academy of Pediatrics, has this medical research, medical programming, grants canceled because they criticize, you know, the administration's posture on vaccinations, when, by the way, like, reported measles cases are at a 30-year high. And so it's this attempt to, I mean, I don't know, like, sicken the population by canceling funds, quelling expertise, that is just so appalling to witness.

• 1:05:48Speaker 09

  And I think it's also really an effort to chill, right? It's an effort to try to send a message to expert societies, to the American people, if you cross us, if you dare say the truth and follow the science and the evidence, as opposed to sort of political ideology, we're going to come for you in life-saving programs. And that's why these legal challenges have been so important, and this one is so important. And to be clear, the American Academy of Pediatrics has said, you know, they need to be able to work with the federal government. That's what we need them to be able to do. But this action is unlawful, it's retaliatory. We're confident that we'll be able to secure some relief in court.

• 1:06:26Leah Litman?

  Yeah. So two more, you know, unfortunate inversions of the holiday season, you know, actions that arose that I wanted to get your thoughts on before we turn to the big picture. And the next one arose on Christmas Eve, Eve, which is when I think we got news that the Department of Veteran Affairs would be banning abortion care and counseling at VA facilities, including in cases of rape or serious health risks. And they did this over vociferous public comment during notice and comment period. You know, our listeners are probably familiar that when an agency makes a decision, they first provide notice of the decision they are thinking about making, they invite comments, and then they are supposed to react and respond to those comments, potentially by changing their course of action. So, Sky,

• 1:07:09Leah Litman?

  I wanted to ask you about the potential fallout from this policy, because the implications are not just going to be limited to veterans, which is already horrifying enough, but also, like, families that depend on, you know, the veteran in their family for their medical care and might receive treatment at a VA.

• 1:07:29Speaker 09

  Yeah, so this is really horrifying. And again, this is like the administration's playbook this holiday season was not to stop being extreme, but was to try to take some of the most extreme actions that we know that the vast majority of Americans oppose and to try to hide it among the holiday season, sort of a Grinch-like, you know, I don't even want to speak that ill of the Grinch, but sort of a Grinch-like mentality. This is really just to focus on what you just said and make sure all the listeners are following. I mean, what this means is that veterans and people who depend on the VA for care, but the people who have given the ultimate for our nation and our nation's

• 1:08:09Speaker 09

  security are not able to access essential health care. And the other thing the administration did was while they came in early on and tried to pull back this policy, going through, you know, announcing a policy, as you said, there was public comment. This act by the administration actually even sought to circumvent that process altogether, purportedly relying on a new Office of Legal Counsel opinion, and really pulling out the rug from veterans and those that rely on veterans' care. We've been very outspoken about this. The National Women's Law Center, one of our partners, has been very outspoken about this. Many others have as well. And I expect that you'll see additional action in the new year. But I think, thank you for highlighting, these are the things they were hoping to sort of

• 1:08:54Speaker 09

  sweep under the rug over the holidays. And this is, this is a really problematic.

• 1:08:59Leah Litman?

  Like the Grinch, they too have awful ideas. And that brings us to the last specific, which concerns the Kennedy Center, which is still the John F. Kennedy Center. And Trump has attempted to illegally rename and rebrand that as the Donald J. Trump and John F. Kennedy Center for the Performing Arts. Wanted to be clear here, the center is named by law, by statute, right? Presidents can't change statute. So he has basically defaced a public building by putting up the name over the holidays. And artists have backed out, right, from performing at the center, you know, in response to this. Sky, I know your organization has requested information about the renaming. And I think this information

• 1:09:40Leah Litman?

  gathering and information seeking has really been a core part of your organization's, you know, approach and strategy. Can you explain what you're asking for and why that's important here?

• 1:09:52Speaker 09

  Yeah, so we're asking for documents that around the governance of the Kennedy Center. As you said, the law couldn't be more clear. So let's just be clear. We're not going to find anything that suggests that it is lawful what the president has done here. But we're seeking documents around the governance of the Kennedy Center. We're certainly seeking communications to understand the Kennedy Center has been in the president's eyes for some time. The law could not be more clear and to, you know, it's very clear that there is only one person that that memorial can be dedicated to, and that is John F. Kennedy. And this is really defacing not just of a public building in the country, but of a

• 1:10:33Speaker 09

  memorial to a president that was assassinated. And there is congressional history around this as well. So we're starting by gathering the facts. There has already been one litigation filed by Joyce Beatty, a member of Congress who serves on the Kennedy Center in a capacity during the Kennedy Center who alleges that she was muted during the meetings after they came out and bragged and said, well, this was unanimous and she spoke out. We anticipate, we've heard from so many people across the country that are concerned. So we definitely anticipate that you'll see additional litigation as we continue to gather information.

• 1:11:10Leah Litman?

  Maybe some of the information you will uncover will be a diagnosis of an edifice complex in this administration. But stepping back a bit, you know, I know this is kind of an open-ended question, but, you know, looking back, I guess, what should people know that they might overlook? Or you hope people knew about the fight against the Trump administration that has been ongoing over the last year?

• 1:11:36Speaker 09

  Yeah, so I think that a few things we want to make sure people are understanding. One, and I say this with full scope acknowledgement and understanding, we work with these communities and people every single day, that so many people have been harmed by this administration. And so what I'm about to say does not undermine that harm. It does not mitigate that harm. You have a president that has one of the most powerful offices in the world, seeking to harm people. And so that is hard to stop. But by and large, the way in which people and communities have shown up in the streets, and we'll talk about that, but also in the courts. Has largely been working in slowing and stopping much of what this administration would do. And so what that means is that it is really bad now.

• 1:12:21Speaker 09

  It would be so much worse and unrecognizable without the legal challenges. There have been nearly 500 challenges filed in federal court over the last year. That's not because people love suing the president. It is because of this extreme behavior. The vast majority of those cases do not go to the Supreme Court and have not gone to the Supreme Court, even on the shadow docket. And in the vast majority of those cases where courts have already issued some preliminary rulings or other types of rulings, you have the president losing far more than he is winning in court and you have people prevailing. So we want people to understand that because the courts remain a tool that the people have that we are going to have to utilize and exercise over this next year. It's not a perfect tool.

• 1:13:06Speaker 09

  And certainly, and you and I have talked about, there have certainly been many disappointments where the Supreme Court has gotten in the way of the justice that lower courts are administering to people in unexplained decisions. We have a blockbuster merits docket coming down. You'll cover all those things. But that doesn't take away the fact that the ability of people in this country to initiate litigation against their government and to stand up and say, you are doing this to me and my community and I'm going to make it public. I'm going to require a public accounting and I'm going to hold you accountable in a court of law. That remains a huge power and it's one that's going to have to be utilized over the next year. So that's one thing we want people to know. I think the other thing we want people to know is it really is up to all of us as to what happens next.

• 1:13:48Speaker 09

  Powerful institutions have not stepped up to the plate. They have pulled back. But what we have seen is that people have stepped forward, whether that is millions and millions of people in the streets. We've seen the two largest peaceful mobilizations in U.S. history happen over the last year, or whether it is in the courts or communities. Next year, it's going to need to be at the ballot box. It really is up to all of us. And so what we have to do in 2026 and what we did in 2025 is we have to silence that little voice in the back of our heads. That suggests that there's nothing that we can do.

• 1:14:23Leah Litman?

  Yeah.

• 1:14:23Speaker 09

  That it doesn't matter, that it's all going downhill and there's nothing we can do. Because the number one power that a autocratic actor has and that autocratic movements have is convincing people that they don't have power. And we have to defy that every single day and show up and be in resistance to that. And so I think those are the things we really want people to focus on as we look back in the last year and as we look forward to the next year.

• 1:14:48Leah Litman?

  It's almost like an inversion from the usual suspects. You know, the greatest trick the devil ever pulled is convincing the world he didn't exist. Like, the greatest trick the autocrat pulls is convincing you that you don't matter.

• 1:14:59Speaker 09

  Exactly.

• 1:14:59Leah Litman?

  Um, so, you know, on, on that note, you know, I also wanted to echo, I loved, you know, what you said your organization was thinking about for this upcoming year, which is holding not just the president accountable, but also all of the institutions that are enabling, you know, what this administration is doing.

• 1:15:16Speaker 09

  Yes.

• 1:15:16Leah Litman?

  So I guess I'd invite you either to expand on that or add, you know, any other advice as we head into this new year.

• 1:15:22Speaker 09

  Yeah, so number one, we have to continue to just show up in, in, in defense. So you're going to see these swift legal actions filed, whether it's over the holidays or, um, who knows what he's going to plan in July as they're celebrating 250 years. So you're going to see that. So that's got to continue. But this is a real opportunity to also go on offense and to make it clear that history is watching and that people are watching today, what side folks are on. And so, um, as we look to the new year, we're looking at the big, uh, bill that authorized just exponentially greater funding towards ICE and other types of activities that we believe will violate the constitution and violate people's rights. That doesn't have to be that way.

• 1:16:05Speaker 09

  The president could make a choice to operate lawfully and to operate in a way that is not harmful to people, but that's not a choice we've seen them make. And so you will see us, um, really scrutinize, uh, what companies and institutions are behind aiding and abetting those types of rights violations. Um, you will see us scrutinize, um, pathways of liability for federal agents. I mean, these people are individual people and in many states and under certain Legal structures, you can be held personally liable if you violate people's rights and harm people. We're litigating something right now in Portland where kids have been tear gassed, have been in their housing development in Oregon, and they are being poisoned by the

• 1:16:49Speaker 09

  federal government. And so you will see us sort of take those aggressive actions to try to make sure that people are protected and that we can go on offense in those ways. And then the other thing for the new year is we're in the middle of a fight, but we also have to remember that the work of justice has always been urgent, and you've been so good at highlighting this, but our systems and structures were not intended initially to hold all of us. They certainly left the two of us out and so many of your listeners and so many Americans. And so this is really an opportunity to reimagine what it means

• 1:17:28Speaker 09

  and what it can mean for the next 250 years to be in a democracy and to take bold steps and set the stage for taking bold steps that reimagines and reframes our democracy as a society that is meant to hold everyone where we all can thrive. So at Democracy Forward, one of the things that we're doing is we are launching a project that is listening to the American people across the country on what they expect from their government, what they want to see, actually being informed by the people. And then all of those federal workers that Donald Trump indiscriminately fired that have years and years of expertise that have seen up close what was working and what wasn't. We have a great program

• 1:18:10Speaker 09

  at Democracy Forward where we're putting, we're able to put some of those public servants to work on behalf of the people to help plan and put the work in place for that rebuild called Democracy Works 250. So those are some things that we're hoping people can both hold it all at the same time. We've got to defend and disrupt, but we also have to build.

• 1:18:30Leah Litman?

  Well, that is a great agenda. Thank you so much, Sky, for making time to join, as well as for all of the work that you and your organization are doing.

• 1:18:37Speaker 09

  Thanks so much.

• 1:18:41Leah Litman?

  Strict Scrutiny is brought to you by Mint Mobile. Now that holidays are over, you might be feeling like you've got a big spending hangover. The drinks, the holiday food, the gifts, it all adds up. Luckily, Mint Mobile is here to help you cut back on overspending on wireless this January with 50% off unlimited premium wireless. Mint Mobile's end of year sale is still going on, but only until the end of the month. Cut out big wireless's bloated plans and unnecessary monthly charges with 50% off three, six, or 12 months of unlimited. All plans come with high-speed data and unlimited talk and text, delivered on the nation's largest 5G network. Use your own phone with any Mint Mobile plan and bring your phone number along with all of your existing contacts. Crooked Media's favorite Mint Mobile subscriber Nina says making the switch to Mint Mobile

• 1:19:26Leah Litman?

  was so easy, she even got to keep the same phone number. And best of all, she's paying a fraction of what she was paying on her old plan with one of the big wireless companies. This January, quit overspending on wireless with 50% off unlimited premium wireless. Plans start at $15 a month at mintmobile.com/strict. That's mintmobile.com/strict. Limited time offer, upfront payment of $45 for three months, $90 for six months, or $180 for 12-month plan is required. $15 a month equivalent. Taxes and fees extra. Initial plan term only. More than 50GB may slow when network is busy. Capable device required. Availability, speed, and coverage varies. See mintmobile.com.

• 1:20:09Speaker 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.

• 1:20:54Leah Litman?

  So Sky and the team at Democracy Forward have been doing their darn best to fight back against the Trump administration, including in the courts, though not exclusively. So it's no surprise that the Trump regime is trying to radically remake the federal courts. I wanted to play an exchange at a recent Senate confirmation hearing before introducing our next segment about Trump's lower court nominees. And this was a hearing for Justin Olson, who was nominated to a federal district court in Indiana.

• 1:21:18Speaker 11

  During that sermon, you said that marriage was not intended for all people, including, and I'm going to quote your words, "Our handicapped friends are our persons with physical disabilities that might prevent the robust marriage that we're called to." Close quote. Did you say that?

• 1:21:38Speaker 12

  I think I did, Senator. Yes.

• 1:21:41Speaker 11

  Well, in one of them, you said, quote, "Transgenderism, homosexuality, fornication, and all sorts of sexual perversions was a form of hypocrisy from," quote your words, "shame on the inside." Did you say that?

• 1:22:03Speaker 12

  I don't recall the precise wording, but that sounds...

• 1:22:07Speaker 11

  What did you mean by that?

• 1:22:10Leah Litman?

  So that gives you some sense of the people they're putting up. And now for our conversation about those people with one of the good ones, i.e. a good person, Josh Orton, president of Demand Justice. Welcome to Strict Scrutiny, Josh.

• 1:22:21Kate Shaw?

  It's great to be here. Okay, so let's tell our listeners a little bit about Demand Justice if they don't know about it. So it was formed during the first Trump administration. And our understanding is that you guys are really trying to get progressives and Democrats to focus on the courts, a goal we very much share, and that you are also really focused on trying to instill some discipline in the messaging about things like the role of courts and judges in our democracy. So longtime listeners to our podcast will remember that we actually spoke to Demand Justice's first president, Brian Fallon, as he was stepping down from the organization. Did I get that basically right, Josh? Yeah, that's exactly right.

• 1:22:57Leah Litman?

  As we know, Demand Justice stays on its hustle. It recently issued a report on the Trump 2.0 judicial nominees. Those are the judicial nominees.

• 1:23:07Melissa Murray?

  That have been nominated in the second Trump term. And surprise, surprise, they are even worse than the Trump 1.0 nominees. So today, we are going to be talking with Josh about the report, the nominees, and what all of this means for the state of the federal judiciary. So let's dive right in. So Josh, during and after Trump 1.0, people thought that because the Supreme Court ruled against the administration in the census case and the DACA rescission case, and because the court upheld abortion rights, that's a little bit of an overstatement, I think, in June medical, that the courts were going to be a permanent bulwark against authoritarianism and Christian nationalism.

• 1:23:51Melissa Murray?

  But we know that institutions are not static. They change and evolve. And this view of the Supreme Court as a kind of static institution that is gamely defending democracy ignored how the Trump administration was changing, and more importantly, how the Trump administration really changed the Supreme Court. And indeed, our sense that people were not grasping the nature of this evolution in real time, that's basically the origin story or genesis of this podcast. We really wanted people to understand that. So is that your sense as well as what happened and what's going on?

• 1:24:28Speaker 13

  Yeah, I think that's right. And I think it sort of mirrors the genesis of demand justice, too. I think as we, I think we would all agree, Democrats or progressives are essentially a generation or behind more, not just in sort of activating our base around the importance of the federal judiciary, but in, you know, the next step after that, which is once our base is activated, once people on sort of our side who sort of view the world in a more progressive way are understanding and sort of activated of how, you know, the courts affect everyday life, you know, how they protect or Or progress or not, then the next step is we're also a generation behind in those voters, those advocates, holding accountable our elected representatives and, you know,

• 1:25:09Speaker 13

  those in Democratic caucus. And I think as part of that, one of the things that demand justices has tried to do is that our side is really terrible about talking about the federal courts from in a with a political lens. I think for a long time, we've really thought about the courts as a sacrosanct institution. You know, I remember, you know, one of the ways that I was sort of converted, I think, was in law school. I was in a taking a class specifically on the 14th amendment and we were going through the jurisprudence of abortion. And I remember the democratically nominated justices writing with sort of precise medical terminology that were sort of following the facts in the case before the court. And I remember reading the Republican nominated confirmed justices who were, I had, you

• 1:25:54Speaker 13

  know, because I had worked in politics before I went to law school, I knew the like, I was like, this is Frank Lunt's language that is appearing in Supreme Court jurisprudence. And I think that we've been really behind in kind of calling that out. And I think that, you know, one of the things that has been my experience is when you talk to, and I know this is the case for you all too, is when you talk to some people who are aligned with us, who are coming from a more legalistic background, you start talking about the court, especially the Supreme Court, as an entity that looks at what it wants a political outcome to be, especially in the Roberts Court, especially with with with these justices. If you start talking about them as political actors, as trying to see, well, what are they trying to accomplish? And how are they sort of backfilling the jurisprudence? You're sort of looked

• 1:26:38Speaker 13

  at as if you are sort of besmirching something holy. And so, you know, I agree entirely that I think especially this Roberts Court has sort of at first sort of put up the front a little bit that it was a little bit more responsive to the sort of the the goings on and sort of the where things were.

• 1:26:58Melissa Murray?

  Lies, all lies.

• 1:27:00Speaker 13

  Yeah, yeah. And but I think that, you know, I think that that mask is dropping. And I think it's dropping especially quickly in Trump 2.0. With the shadow doc and everything else. And so, you know, I think that's true up and down the courts, especially true with the Supreme Court.

• 1:27:13Melissa Murray?

  So can we go back just a minute to what you said about people being unwilling to see the court as part of politics? So Kate and I, I guess this was almost a year and a half ago, were at a briefing at the White House. And, you know, we were talking about a lot of things. And one of the things we were talking about was abortion politics. And we wanted to talk about going into the election, how this Supreme Court, which had two septuagenarian justices who are likely to be stepping down if there's a Republican administration, how abortion, everything was on the line and not just because of jobs, but just generally. And we were shocked by how unwilling they were to engage the question of the courts. Like, they thought the voters couldn't understand it. And, you know, maybe that's true to some degree.

• 1:27:58Melissa Murray?

  I think it likely isn't. But it feels that right now, we're in a kind of similar position where people don't understand the courts having a political valence. We're in this moment where people are saying, you know, the courts are standing on business and standing up to Donald Trump. And I think that's true insofar as the lower federal courts go. But we know that lower federal courts can change. And, you know, one of the things that your recent report really points out is that this kind of change is very much looming because these nominees are even more extreme than the ones that preceded them in Trump 1.0. So just an example, your report points out that, quote, "Not a single nominee stated the affirmative fact that Joe Biden won the 2020 election.

• 1:28:42Melissa Murray?

  Not a single nominee spoke to the events that occurred on January 6th." Why are those omissions so significant in your view? And what can they tell us about what is looming?

• 1:28:53Speaker 13

  Well, I think there's a couple of things. First, I think that as a general matter, Donald Trump is paying a lot more attention to not just the Supreme Court, but his lower court nominees this term than he was the previous term. You know, as you know, he's announcing every single one on Truth Social individually. They're no longer like sort of spreading around the record or the announcing these nominees ahead of time. And I think, like everything else in his administration, The number one thing he's looking for essentially with anybody that he nominates for anything or hires for anything is loyalty. And what sort of we assert is the most disturbing thing about these two questions is they're essentially Trump's litmus tests, right? You cannot exist in a Trump administration and say that he lost the 2020 election or that January 6th was the was an attempted violent coup of the government, right?

• 1:29:38Speaker 13

  We saw that with, I think it was the line prosecutors from the Department of Justice. You know, no one, I sort of, I'll sort of posit the idea that if one of these, and these were larger questions in QFRs and we're encouraging Democrats to actually answer them in live hearings. If one of these nominees was asked point blank in an open hearing, did Donald Trump lose the 2020 election? And they said yes, I don't think anyone disagrees that their nomination would be pulled within hours. And so I think that, so our assertion here is essentially that it's not just that all of these folks are extreme, and they are, it's, you know, and crypto bros and everything else, it's not just that they're sort of corporatists, and they are. But I think what's interesting about this group is they have self-selected themselves

• 1:30:20Speaker 13

  as people who are willing to compromise their, their integrity, their independence, and basically commit to a litmus test and say, yeah, the, I'm not willing to, to contradict the president on the overthrow of an election or the violent attack on the Capitol. And what that, what that says to me is, one, they're disqualified from the federal bench no matter what. And frankly, we've now raised questions about why, as of this point, 18 members of the Democratic Caucus see fit to vote to confirm them.

• 1:30:50Speaker 13

  But, but two, what happens when these judges who, you know, and we look at the, the judges from the first Trump term who did not have to take what I assert is a political litmus test? What happens when these judges are on benches across the country and there's an election interference case in front of them? When there's a, when there's a political prosecution of what are Trump's enemies in front of them? And they have bipartisan credibility because Democrats saw fit to, to vote yes. And so, yeah, I think it's a real problem.

• 1:31:16Kate Shaw?

  We want to come back to those Democratic votes, but actually, just to quickly follow up on something you said. So the nominees are giving these boilerplate answers around the 2020 election and January 6th. And am I right that you said you have said, but they're doing it in their written questionnaires or questions for the record. Have you not succeeded in getting any Democratic senators to pose these questions in the hearings? And if not, why not?

• 1:31:39Speaker 13

  They asked it, so it was asked of Imo Bovee. But so now, actually, I believe we've had conversations that the Democratic senators are going to start asking these questions verbally because frankly-

• 1:31:49Leah Litman?

  Great New Year's resolution.

• 1:31:50Speaker 13

  Yeah, correct, correct. And then, you know, a follow-up question, you know, the follow-up question, it's so funny because I was having a conversation with one senator and I said, you know, I would suggest that the conversation could be, you know, the first question is, was January 6th attacked on, you know, was the Capitol attacked on January 26th? And if they sort of did this dodge, say, did you watch the footage of January 6th? And I suggested the follow-up question be, what did you see? Because I don't think they can answer these questions because, like you said, I think the White House basically gave them the answers that wouldn't annoy Donald Trump. And that's the most they're willing to say.

• 1:32:22Leah Litman?

  Yeah, so let's stay on the confirmation process for a minute and maybe offer a bit of context because, you know, I think what some people might not understand is that confirmation hearings are really an important mechanism for working out, one, what law is established, as well as societal understandings of precedent and the public's expectations for how precedent will be followed. For example, you know, when Robert Bork criticized Roe versus Wade, Griswold versus Connecticut, you know, the case about contraception, and Marbury versus Madison, like literally the foundational case on judicial review, it doomed his bid for a seat on the Supreme Court. The public viewed those decisions as settled, and Bork's opposition to them was a problem, and the public's response to his answers helped cement the idea that those cases were indeed foundational to the American legal order.

• 1:33:05Leah Litman?

  And something else your, you know, report documents is, the Trump nominees have had very, let's say, interesting responses to questions about settled precedents. And it's not just the Trump 2.0 nominees. So we wanted to play this clip from the 2018 confirmation hearing of Wendy Vitters, now the chief judge of the Eastern District of Louisiana.

• 1:33:23Speaker 14

  Ms. Vitter, do you believe that Brown versus Board of Education was correctly decided?

• 1:33:32Speaker 08

  Senator, I don't mean to be coy, but I think I get into a difficult difficult area when I start commenting on Supreme Court decisions which are correctly decided and which I may disagree with.

• 1:33:49Kate Shaw?

  At some point in our not-too-distant past, refusing to accept Brown as rightly decided would have clearly been disqualifying. But it is wild how things have changed. And as you note in the report, there have been some of these Trump 2.0 nominees who have made pretty interesting statements and given pretty interesting responses to questions about Brown itself, but also Dobbs and Obergefell, the 2015 Supreme Court decision legalizing same-sex marriage nationwide. So what are these nominees saying and why should we be so concerned?

• 1:34:19Speaker 13

  Yeah, I think what's interesting is this sort of goes back to the question of what is this, how do we read what they're saying in political terms? Because I think that that's the sort of the decoder ring that I think we have to apply here. Because you're seeing that unlike the first Trump term, the nominees are willing, are more willing, and I think Rebecca Tabelson is sort of a good example of this for the Seventh Circuit, who is willing to say that Brown v. Board was not just settled law, not that she would apply it, but she was actually willing to affirm the principle behind Brown v. Board that separate can never be equal. But then when they got to the questions of gay marriage and that jurisprudence and Obergefell, then the sort of, it switched to the hedge of, well, I'm willing to faithfully apply settled Supreme Court precedent. And,

• 1:35:03Speaker 13

  you know, Senator Blumenthal sort of needled on this question quite a bit, especially with Rebecca Tabelson, and said, well, what's the difference between one and the other? And of course, she couldn't give one. But I think that's when you sort of apply the sort of a political decoder ring, which is that these nominees, you know, they, I think the Trump administration and their base realized that, you know, they're not going to score a lot of political points, or at least their sort of political base isn't so much worried about a nominee saying that, okay, you know, separate, separate would equal is going to fall. But I think they do have to sort of make, you know, the argument to their base, to their far-right, you know, Christian nationalist donors. That they need to at least show that they it's possible that gay marriage as a as a legal proposition would fall under their term.

• 1:35:48Speaker 13

  Now, I'm not sure that they're actually they think it's it's going to happen. But I think, you know, that line, which I think, you know, was created, I think, in the second Trump administration, tells us what the Trump administration sees as an important message to their base and to their donors. And that is, we got rid of abortion and we're leaving the door open to overturning gay marriage.

• 1:36:10Leah Litman?

  So as nightmarish as this all is, somehow, not all of this has concerned all of the Senate Democratic Caucus. A fair number of Democrats, you know, as you noted, have voted for the Trump 2.0 nominees. I guess, do you have a sense about why that is or what on earth is going on here?

• 1:36:31Speaker 13

  None of my answers are not cynical.

• 1:36:35Leah Litman?

  That's okay. This is a cynical podcast.

• 1:36:38Speaker 13

  And they sort of just they it's sort of run the gamut of cynicism. I think in of in, you know, the on one end, I think that these senators sort of see themselves and sort of self style themselves as on some level bipartisan. And so they they're looking for for opportunities to vote for a conservative nominee or a Republican nominated lower court judge so they can sort of go around and talk about how they, you know, voted for bipartisan nominees. You know, another, you know, another possibility is a lot of this is log rolling, right? Like, I was on Senate Judiciary, I've worked in the Senate, like, you know, they trade, you know, senators trade sort of support for nominees based on, you know, all the stupidest reasons in the world, like, you know, well, you know, I have a donor who worked at this

• 1:37:22Speaker 13

  law firm and, you know, their partner is up for nomination or whatever else. And, you know, so that's so they're all bad reasons. I think one of the interesting things here is that I think they are still under the illusion that voting in a bipartisan way for judicial nominees is somehow helpful to them. And what I think is interesting, and I've sort of made this point, is first, I think there is really no moral, political, or historical reason to vote for any of these nominees. I think that especially on these two grounds, on January 6th and refusal to admit that Trump lost the 2020 election, there's no, in political terms, there's no gettable voter that believes that Trump won the 2020 election. And so, saying you voted against them for those two reasons is not going to lose you any votes. I would argue that no matter why you voted against Trump nominees, it wouldn't lose you votes in the first place, but especially

• 1:38:06Speaker 13

  on those two matters. But I think also, we have to sort of step back, and I sort of give this historical warning for them. Imagine, you know, I think the analogy that I was thinking of with January 6th is, imagine 30 years ago, if a federal nominee was asked sometime in their history, or even in a QFR or live hearing, if they were asked what Timothy McVeigh did in Oklahoma City, and they were unwilling to say, "He bombed the federal building." Right? Like, there is not, I hope, in the sort of Jeff Sessions era of Republican Judiciary Committee members, and maybe I'm thinking about this through rose-colored glasses, but I don't think really they would survive a Senate Judiciary Committee hearing. And to speak disparagingly about the American Bar Association for a moment, I don't think they would rate them as well-qualified either. And so, I think there's a real danger

• 1:38:51Speaker 13

  here with everyone sort of, and it's Senate Democrats, Senate Judiciary Committee Democrats, the ABA and others, looking way too narrowly and sort of not seeing the big picture of how the Trump administration and Senate Republicans are essentially moving the goalposts of what is a qualified nominee. And rather than sort of planting their feet and saying, "If you are covering up, or if you are not willing to rebut the president on the overthrow of an election, you are not qualified for the federal bench," instead of looking for a reason to confirm them, I just think in 10 or 20 years or more, these are going to look like really, really foolish votes. And I think in the short term, you know, there's

• 1:39:34Speaker 13

  a big base of voters out there who, when they sort of are aware that... Look, just like, you know, because you supported crypto or because you spent a couple of years at a firm, that doesn't mean that you're, I mean, even absent these questions, you know, these, the crop of nominees, as you've pointed out in Trump 2.0, have gotten worse to begin with. But even with these questions, I just don't think, I, I see no grounds to vote for any of these people. And I think that Senate Democrats, you know, they try and it, they look for reasons to be bipartisan. And I think as sort of the, to hit on the theme here, they need to sort of accept that the politics is the reality and that the Trump administration is nominating people for political reasons. This process has become politicized. The Republicans got there 20, 30 years ago.

• 1:40:19Speaker 13

  And to sort of imagine that you can exist in this world where these nominees are qualified or not qualified based on their jurisprudence or their behavior is just, it's false. They have to accept the, the premise that these are, these have been politicized and need to stand their, their moral ground to, to vote against them.

• 1:40:35Melissa Murray?

  All right. I'm just going to say it's my New Year's resolution. I'm going to stay focused on the court. Oh, wait, I am already doing that. So that's fine. And you're going to keep doing that, Josh. So we just want to thank you, Josh Orton of Demand Justice, for stopping by for this first episode of 2026. What a way to get started. Thank you.

• 1:40:53Speaker 13

  Thank you and Happy New Year.

• 1:40:58Kate Shaw?

  Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw. Produced and edited by Melody Rauel. Michael Goldsmith is our associate producer. Jordan Thomas is our intern. Audio support from Kyle Seglan and Charlotte Landis. Music by Eddie Cooper. Production support from Katie Long and Adrian Hill. Matt DeGroot is our head of production. And thanks to our digital team, Ben Heathcote, Joe Motowski and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com slash at Strict Scrutiny Podcast. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

• 1:41:55Speaker 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.

• 1:42:35Speaker 15

  Monday night brings one more big matchup to settle into. And when every play matters, the last thing you want to do is step away to figure out dinner. That's where DiGiorno comes in. Get a DiGiorno pizza ready before kickoff, then enjoy a restaurant-quality taste fresh from your own oven while you stay locked into every play. Stock up on DiGiorno over the weekend so when Monday night rolls around, the only thing you sweat is the game. Shop now at the link in the episode description. It's not delivery, it's DiGiorno.