Our Long Road Out of Autocracy

Kate is joined by returning guest and friend of the show, Kim Lane Scheppele, the Laurance S. Rockefeller Professor of Sociology and International Affairs at Princeton, and one of the world’s leading scholars of democratic backsliding, autocracy, and the rule of law. They discuss how the Supreme Court has been “captured,” the ways Donald Trump is attempting to remake Washington, D. C., in his image, and what Hungary can teach us about autocracy and how to recover from it. Favorite things: Kate:Emil Bove Defended Trump in Court. Then Trump Made Him a Judge https://www.nytimes.com/2026/07/06/us/emil-bove-judge-trump.html?unlocked_article_code=1.vlA. PWpJ. Jvliq6oqQshv&smid=url-share, Mattathias Schwartz (NYT); Mailman: My Wild Ride Delivering the Mail in Appalachia and Finally Finding Home https://bookshop.org/p/books/mailman-my-wild-ride-delivering-the-mail-in-appalachia-and-finally-finding-home-stephen-starring-grant/1b27909a0000b74a?utm_source=google&utm_medium=cpc&utm_campaign=dsa_nonbrand&utm_content=%7Badgroupname%7D&utm_term=dsa-19959388920&gad_source=1&gad_campaignid=12440232635&gbraid=0AAAAACfld42CpOT56xH_qoBJp7k01oZYl&gclid=Cj0KCQjwsMLSBhD9ARIsAIpUTDoXf_g2CQ554oZFgqUHY0gYfVM57WWv22Q-eipnY78rYiG5T7ylUSoaAg1OEALw_wcB, Stephen Starring Grant Kim:Regime Change: Inside the Imperial Presidency of Donald Trump https://bookshop.org/p/books/regime-change-inside-the-imperial-presidency-of-donald-trump-jonathan-swan/13c6a25d1f6d7d90?ean=9781668067246, Maggie Haberman & Jonathan Swan; Into the Wood Chipper: A Whistleblower's Account of How the Trump Administration Shredded USAID https://bookshop.org/p/books/untitled-summit-to-be-confirmed-summit-books/be42e5ef39f27d16?ean=9781668226957, Nicholas Enrich; 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; It Can't Happen Here https://bookshop.org/p/books/it-can-t-happen-here-sinclair-lewis/31d990ec9887530c?ean=9780451465641, Sinclair Lewis; Borgen - Power & Glory https://www.netflix.com/title/81282868(Netflix); Gok Wan's Easy Asian https://www.amazon.com/gp/video/detail/amzn1.dv.gti.1b4979fe-b798-47a8-94e5-e890c08faf1f?tag=amazon-us-ro-mac-chr-20&token=ADE07EB7B9E7DB86DEEEF0D5D4FC5F0B5FB44D3F (Prime Video) Get tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.com http://crookedcon.com/Buy Melissa’s book,The U. S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader https://bookshop.org/p/books/the-constitution-annotated-for-the-contemporary-reader-melissa-murray/8e7f0dfa472fc3ca?ean=9781668221938&next=t&Buy Leah’s book, Lawless https://bookshop.org/p/books/lawless-how-the-supreme-court-runs-on-conservative-grievance-fringe-theories-and-bad-vibes-leah-litman/5b562d6fcb316d6e?ean=9781668054642&next=t, now out in paperback Follow us onInstagram https://www.instagram.com/strictscrutinypodcast/?hl=en,Threads https://www.threads.net/@strictscrutinypodcast, andBluesky https://bsky.app/profile/strictscrutiny.bsky.social For a transcript of an episode of Strict Scrutiny please email [email protected] mailto:[email protected]

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

• 0:00Melissa Murray?

  Strict scrutiny is brought to you by Americans United for Separation of Church and State. It's everywhere right now, the celebration of America's 250th, and we're in the thick of it this month. Christian nationalists are using this milestone not to unite, but to divide. They're pushing the lie that America was founded to be a quote-unquote "Christian nation", where just one religious movement gets to decide who fully belongs, instead of the truth that America was founded as a democracy committed to liberty and justice for all. The idea that America was founded as a Christian nation is propaganda, not patriotism. It's a dangerous lie meant to justify censorship, discrimination, attacks on public schools, assaults on LGBTQ+ rights, restrictions on reproductive freedom, and government favoritism

• 0:43Melissa Murray?

  toward one extremist version of Christianity. Americans United for Separation of Church and State is here to fight back against this dangerous and egregious misrepresentation of our founding documents. AU fights daily for everyone's ability to live as themselves and to believe as they choose, so long as they don't harm others. It's a novel idea in the day and age when almost every day we're seeing Christian nationalism weaponize a faith to attack individual freedoms across our country. So do something patriotic this summer as you're dodging the propaganda flying at you from all angles. Become a member of Americans United. By supporting AU, you're committing to standing up and protecting church-state separation in every area of life.

• 1:26Melissa Murray?

  You can learn more about how you can support AU and the protection of everyone's rights at au.org/crooked.

• 2:05Speaker 01

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• 2:14Speaker 02

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• 2:36Speaker 03

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

• 2:48Speaker 04

  She spoke not elegantly, but with unmistakable clarity. She said, "I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."

• 3:19Kate Shaw?

  Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I am your lone regular host today, Kate Shaw, and I'm delighted to be joined by a returning guest and friend of the show, Kim Lane Shepley, the Lawrence S. Rockefeller Professor of Sociology and International Affairs at Princeton, and one of the world's leading scholars of democratic backsliding, autocracy, and the rule of law. Kim, welcome back to Strict Scrutiny. Great to be here. So, for those of you who don't know, Kim, let me just say a few words about her before we dive in. Her research examines the rise and fall of constitutional government, and she has recently focused on the rise of autocratic leaders who are elected on these populist political

• 3:58Kate Shaw?

  platforms and who then use the law to undermine constitutional institutions and democracy. Her comparative scholarship and commentary is both broad and deep, and her work on Hungary has been particularly instructive in recent years. And we are going to get to that. But, Kim, as you know, we typically begin our shows with breaking legal news. So, I think if it's okay, we will start there and then turn to our deep dive on what's going on in Hungary right now and what we here in the United States can learn from it.

• 4:27Speaker 06

  Great, wonderful.

• 4:28Kate Shaw?

  Okay, so let's dive in. It has only been a week since Leah and Melissa and I sat down to take stock of the Supreme Court term that just ended. So before we turn to this last week's news, Kim, I haven't had a chance to really get your take on the term, right? So whether that's the opinion narrowly invalidating Trump's birthright citizenship executive order that came down in the last day, or its decisions handing him new power over independent agency heads with the big exception of the Fed. So those or just the term in general? Before we turn to breaking news, kind of what are your big takeaways from SCOTUS as a court watcher with a very particular perspective?

• 5:06Speaker 06

  Well, first of all, thanks for having me on and thanks for starting there because, you know, in my background, I worked for four years at the Hungarian Constitutional Court. And I worked for one year at the Russian Constitutional Court. These are both courts that got captured by the autocratic leaders that came in and decided that rule of law was a tool that they could use against their opponents. So I know a lot about captured courts. And my conclusion at the end of this term is that the US is living with a captured court. Okay? Now, why do I say that? I mean, captured courts, you know, sort of like clocks can be right twice a day. I mean, captured courts don't just rubber stamp what an executive does because the

• 5:49Speaker 06

  captured courts have to maintain the fiction that they're still courts, that they're still independent, that they're still doing law somehow. So what I've learned from looking at other courts elsewhere is that captured courts tend to rule against their autocratic minders in three cases, right? One are cases where the autocrat walks himself into a cul-de-sac, wants to change his mind, but doesn't actually want to appear to reverse what he did. So the court will then declare unlawful whatever it is the autocrat did. The court will look independent, the autocrat will say, great, I really wanted to do that. I will certainly honor the rule of law. I will follow the decision and everybody thinks things are normal. Think the National Guard case, right?

• 6:33Speaker 06

  How was Trump going to get the National Guard out of Los Angeles and Chicago without the court telling him he had to pull them back? And you'll notice that actually he was eager to comply, right? So classic case, pack court getting the executive out of a cul-de-sac.

• 6:49Kate Shaw?

  While saving face, right? Like while not appearing publicly to make an about face of any sort.

• 6:55Speaker 06

  Yes, exactly. And you know, they had to reach to find the arguments. And you know, Marty Liederman, as I know you've covered on the pod, you know, gave them a very good out. And I don't think Marty's an advocate of a pack court by any means. But the fact that they chose that case to stand up to him is an example of this, you know, leader in a cul-de-sac needs help kind of scenario. There's another kind of scenario, which is where the court starts to come under persistent criticism for being not independent, not doing law. So they have to appear to do law. So what they'll do is do law in a context in which the president has other ways to do the thing that the court is forbidding him from doing. Think tariffs, okay? Now with tariffs, what I was doing, thinking maybe this is what's going on.

• 7:40Speaker 06

  I was watching the countries that Trump was ranting against. It was a very specific set of countries. I mean, China and Britain, and Canada, the UK. And there are other authorities under which Trump can issue tariffs. And what he was doing in that long period between the oral argument and the decision? I mean, you know, the court can also just wait till June and give everybody a heart attack by issuing ten decisions at once like they did this year. But you know, but that was a long time in a case that looked easy from the oral argument. So I think what the court was doing was waiting until Trump transferred a lot of those tariff authorities to other laws. So that by the time they struck down his, you know, tariff,

• 8:23Speaker 06

  Tariff the World Including Penguins Act, right? He had already transferred the tariffs he cared about. And it was a little bit of a cul-de-sac move. Like, how is he going to rescind the tariff on penguins, right? There were a lot of tariffs he probably didn't care about. So again, it was, and then Trump railed against them to make it look like this is, I mean, I think he was genuinely angry because I don't think he knows the details of his own tariff regime, right? But, but the ones that he had singled out had already been transferred to other legal authorities by the time that came down, right?

• 8:56Kate Shaw?

  And again, the court looked just deeply independent to many court watchers.

• 8:59Speaker 06

  I'm sure they are.

• 9:00Kate Shaw?

  And so, you know, and Trump still gets to do most, if not all, of the tariffing that he was doing under the prior regime.

• 9:06Speaker 06

  Exactly.

• 9:06Kate Shaw?

  So, win-win.

• 9:07Speaker 06

  Exactly.

• 9:08Kate Shaw?

  Okay, great.

• 9:08Speaker 06

  And then there's just a third case, just really quickly, what the pack courts do. And that is that, you know, courts are supposed to uphold individual rights. And occasionally, you get a case where the individual rights at stake are so crucial that they've generated a huge amount of, you know, sort of public attention. And that for the court to back down in that kind of a context is something that would be deeply embarrassing to the court and expose the court as not doing law, let's say. Okay. Think birthright citizenship. Okay. Now, what was interesting to me about the birthright citizenship case and what I saw in my cases in Russia and in Hungary on human rights issues was that very often, when the court would rule against the executive on a matter that involved human rights, they

• 9:53Speaker 06

  would do so while also sort of indicating an escape route. You know, here's how it is that you can do what you want if you just do it in a different way. And this is where I take the Kavanaugh statutory argument to be not closing the door, right, but opening the door. And Trump has immediately, of course, jumped through that door and immediately said he's going to do something. So, again, the court was getting a lot of credit, although I must say that by now, so many people are aware of the way the court is just defending Trump's indefensible policies, overturning precedent, not reasoning through, you know, to sort of logical legal answers, for example. I mean, how would you grade this stuff on a law school exam? Not well, you know.

• 10:37Speaker 06

  So, by that time, by the time they got to birthright citizenship, I think a lot of the legal commentariat was saying, look, this isn't the kind of win he expected. This isn't really just, you know, standing up for the 14th Amendment. This is opening the door to something else. So, those kinds of three cases, you know, the cul-de-sac, you can do it another way, and we have to appear to be doing law, but we're going to try to give you an out. Are all signs of a packed court. And in all the other cases, they ruled in favor of what Trump wanted overturning a lot of very settled law. So we're living with a packed court.

• 11:15Kate Shaw?

  Yeah. And the one other case that comes to mind, of course, is his loss in the Fed case. But arguably, that's a category two case because they don't say you can't fire her, just that you didn't afford sufficient process here. So I think that's potentially in that category. Or maybe it's in the cul-de-sac category. Maybe Trump did realize that actually being granted this plenary authority to remove governors or chairs of the Fed would be wildly destabilizing. And actually, he didn't want to. He just wanted to kind of flex first. So it could be either, I think, one of the first two. But I think those are really illuminating categories. And I'm going to like bottle this explanation. And the next time I think we witness somebody lauding the court for its kind of display of independence this term, I think I'm going to force them to, or at least try to force them to listen to this explanation because it's incredibly convincing.

• 12:02Melissa Murray?

  This episode of Strict Scrutiny is sponsored by BetterHelp. We talk about mental health more openly now, but asking for help can still feel hard. And BetterHelp's latest research confirms that. BetterHelp's 2026 State of Stigma Report surveyed 2,000 Americans and revealed that 85% of Americans believe that getting support is wise, yet 74% say that society discourages people from doing so. There are a lot of times when people consider or need therapy. Some people think that there are members of our Supreme Court who could have used some therapy to process some of the trauma of their youth or just difficult situations that they may have had over time. And some speculate that they didn't get the therapy that they needed.

• 12:47Melissa Murray?

  And so instead, we are all paying the price right now as they work it out on us and our rights. There's a better way. BetterHelp can help. BetterHelp therapists work according to a strict code of conduct and are fully licensed in the United States with over 30,000 therapists. BetterHelp is the world's largest online therapy platform, meaning that your ideal therapy match is out there. Don't let stigma stand in the way of support. Start therapy with BetterHelp. Sign up and get 10% off at betterhelp.com/strict. That's better H E L P dot com slash strict. Strict's here and he's brought to you by Zbiotics. Guess what, folks? It's hot Melissa summer. That's right.

• 13:28Melissa Murray?

  My calendar is absolutely packed between parties, hanging out, rooftop cocktails. But you know, with all of that activity, I'm still doing something to take care of my future self, and that is drinking Zbiotics Pre-Alcohol before I go out. 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. And here's how it works. When you drink, the alcohol gets converted into a toxic byproduct in your gut. It's the buildup of that byproduct, not dehydration, that's to blame for rough days after drinking. Pre-Alcohol produces an enzyme that breaks the byproduct down.

• 14:11Melissa Murray?

  So if you remember to take Pre-Alcohol and make it your first drink of the night, and then drink responsibly, you'll feel your best the next day. Again, my schedule is packed this summer. I am doing the most, hanging out with friends, hanging out on the rooftops, maybe going to picnics in the park. And I want to feel my best the next day. I want to come back to make sure that I'm covering the Supreme Court with all of my systems firing. That means that Pre-Alcohol is my little insurance policy. Zbiotics Pre-Alcohol makes sure that I wake up every morning feeling fresh and ready to go, ready to battle some government tyranny. So you too can be ready in this fight to be a more perfect union.

• 14:51Melissa Murray?

  Just head over to zbiotics.com/strict for 15% off so you can try Zbiotics Pre-Alcohol for yourself. July is packed with barbecues, fireworks, lake weekends, late nights with friends, all of the things. And you can keep the good times rolling into the next day. Just drink Pre-Alcohol before you go out and wake up ready for whatever your next day brings. Remember to head over to zbiotics.com/strict and use the code strict at checkout for 15% off.

• 15:25Kate Shaw?

  I, for one, am excited to spend a little time talking about things other than the Supreme Court, at least in this conversation and to a degree this summer. While the court is not hearing cases, next term is already shaping up to be a huge one. So it's going to be a kind of short reprieve. They are hearing not only whatever litigation might crop up around the midterms and Trump's efforts to meddle with them, but we already have a lot of big cases on environmental protection and religious freedom and whether individuals have a right to own an AR-15, like, not kidding. But we have a couple of months before we actually have to grapple with those cases. So let's talk first about just a little bit of breaking news that we got in the last week. And I just mentioned the midterm elections. So one, I think, very concerning development from last week is that Trump fired the three

• 16:08Kate Shaw?

  remaining commissioners on the Election Assistance Commission, or EAC, which is kind of a low-profile federal agency, but it does some quite important work. So there were three remaining commissioners after one resigned earlier this year, or maybe it was last year, two Democrats and a Republican. It sounds, from the reporting, as though he fired the two Democratic commissioners and allowed the Republican to resign. But either way, the upshot is that this 25-year-old agency is now, without any commissioners, at its head. And in terms of what the agency does, it provides states with pretty important assistance in administering elections. States stay in the driver's seat. That's the way the Constitution assigns authority for election administration. And the statute that creates the EAC and gives it these powers doesn't change that.

• 16:51Kate Shaw?

  But it does give the federal government a role in distributing federal funds to help elections and maintaining the national mail-voter registration system and helping test and certify state election systems. So this, I think, mass firing seems like, one, an important test of Slaughter, the Federal Trade Commission case, one of the big cases from last term where Trump is given the power to fire heads of independent agencies like the Federal Trade Commission. It's not, to my mind, clear from Slaughter that Trump even has the authority to fire the heads of this agency, because it's an agency that's pretty different in relevant respects from the FTC. It's not clear it does law execution of the sort the Federal Trade Commission does. But it also feels like a pretty obvious ploy.

• 17:33Kate Shaw?

  To remove, to defang, an agency that might have done something to stand in the way of efforts to manipulate elections. So I guess, Kim, any reaction to this development and also any sort of insight you can provide on how this fits with moves of other aspiring autocrats or authoritarians when it comes to seizing the infrastructure of elections to the extent that they can?

• 17:55Speaker 06

  Yeah, so this is worrisome for all the reasons that you say. I think it's also important in trying to think about, are we living in an autocracy or not, to realize that the whole is often more than the sum of the parts. So this is really crucial, but you combine this with his executive orders trying to federalize elections, with the threats that have come out from the Justice Department to states that are refusing to turn over their voter rolls, to what he's doing with the post office board that's going to refuse to deliver mail ballots to people who were not on these lists, to the threats to withhold Homeland Security funding, right, to states

• 18:36Speaker 06

  that don't cooperate, on and on and on, and plus gerrymandering and everything else, right? Basically, what they're doing is an assault on every single piece of our election machinery that can be controlled from Washington, right? And as you say, this is, I mean, what our greatest protection is, is a massively decentralized system. But, you know, if you think about what it would take to tip elections, you know, going after blue cities in red states where you've got red state election administrators that have already jumped in on sharing information and so on, may be enough to swing congressional districts along with the gerrymandering. So, you know, they're gonna, they're launching a full-scale assault on the election system already.

• 19:17Speaker 06

  And the firing of the members of the Election Advisory Committee, which again is one of those things, I mean, who everyone was scrambling to think, what does this thing do? And there's a great explainer, by the way, on Just Security, talking about how there's still a staff, they can still issue grants, they can still do stuff. And what I'm worried about is that the next challenge, right, is, is it lawful to regulate a civil service? You know, that's going to be the next test. So I suspect that we're also going to Start seeing firing down into agencies of people who are civil service protected. So again, there's the election tampering part of this. But then there's also the getting rid of the civil service part of this. You know, and the extension of slaughter to cover everything within the president's purview.

• 20:02Speaker 06

  And they're just pushing the edges, waiting for the case.

• 20:05Kate Shaw?

  Right. And there are other cases kind of coming down the pike. There's a case pending before the federal circuit called Jackler about firings of two immigration judges who are members of the civil service. But I think it's definitely right. This is an important post slaughter test case with huge implications potentially for election administration. But also to my mind suggests that they are going to be maximalist in their reading of slaughter. And certainly test whether its logic extends to the president's authority to summarily fire everyone of the 2 million people in the federal civil service. I think they think the logic of slaughter supports them in an effort to do that. I think there are very strong arguments against it, but I do think that it's a critically important next frontier.

• 20:44Kate Shaw?

  So next piece of news I wanted to flag is that we had a development in the ongoing saga of the reflecting pool, AKA metaphor for this administration writ large. As listeners will likely recall, this multimillion dollar renovation has gone seriously awry. Algae blooming like daffodils, large swaths of blue paint peeling off. And the administration has, as ever, sought to deflect responsibility and shift blame for this disaster. So Kim, what are they doing to try to shift blame and deflect responsibility in this instance?

• 21:18Speaker 06

  Yeah. Well, so first of all, I love these green hats that have come out with make algae great again. You know, when there's just.

• 21:23Kate Shaw?

  I haven't seen those. That's awesome.

• 21:25Speaker 06

  It's just a lot. And there's the LGBTQ month and, you know, all kinds of things. So, I mean, anyway, so there's just no end of what you can do with the reflecting pool. So, you know, what they've done now is to charge this guy, who is an Olympic canoeist, actually, with a pretty serious felony of destruction of federal property for having reached his hand into the pool. And perhaps touched the peeling paint on the side of the reflecting pool. Who knew that was a crime? Okay, so what they've done is they've now tried to ramp up this narrative. That it's not that Trump just hired his crony to do, to try to turn the reflecting pool into a swimming pool. By the way, I have a swimming pool. I've known what's happened when you try to repaint the bottom of it.

• 22:10Speaker 06

  It's like really not an easy task, right? Anyway, the point is that they just treated it like a swimming pool. It's not a swimming pool, doesn't have the filtration system of a swimming pool. And now they're trying to cover up the fact that Trump had no idea what he was doing and hired a crony. And drove the beast and a whole entourage across the reflecting pool, as I understand it, right? I mean, they drove on it. So anyway, some guy reaching in and touching the thing is really not where the action is. But it's where they want to divert the story to. And I want to say again, like each of these things is always bigger than it looks. It's why it's important to talk about, which is that Trump is in the process of reconstructing Washington DC. He's doing the reflecting pool.

• 22:55Speaker 06

  He's doing the east wing. He's going to try to put up this triumphal arch. He's trying to do this golf course. He's trying, you know, you just look at, and they've also covered the north portico of the White House with tarp. Like, who knows what they're going to do? And our suspicion is that they're going to take those, you know, rather simple columns that hold up the north portico and turn them into, you know, those kind of Greek columns that you only use, you know, to kind of show off. So, I mean, anyway, he's remaking things. And what this is saying is that if you touch any of that, you are liable for the destruction of federal property, right? So it's a much bigger thing. These are meant to be chilling, changing the narrative and also chilling effects on the limits of criticism and the limits of protest.

• 23:42Speaker 06

  Around the way he's defacing Washington DC.

• 23:44Kate Shaw?

  Yeah, no, thank you for that sort of broader contextualization. I think it's so important. And this Hearn, this former Olympic canoeer, as you said, is charged with a serious felony, willfully and violently damaging federal property. He is represented by our friend Norm Eisen. And Hearn says that he was out biking. He stopped at the pool. He touched a piece of floating liner that was already detached. And the next thing he knew, he was under arrest. So I do think that obviously this is a high stakes sort of scenario for him personally. But in terms of what the administration is trying to do, right, it is trying to send a message that like, you shall not mock, right? You shall not challenge, you shall not question, right?

• 24:26Kate Shaw?

  The leaders, yeah, kind of physical reconfiguring of Washington DC, like our nation's capital that does belong to all of us, that he is unilaterally trying to remake in his image. And so it does feel, I think this is why the kind of pool saga has really struck such a note. It feels like it's about a lot more than one decorative reflecting pool.

• 24:45Speaker 06

  Right.

• 24:46Kate Shaw?

  And on that note, something else that was a one off, but also feels really significant. And so even though it's a story that people may have kind of lost track of, I want to sort of mention, because I do think it's part of this whole is greater than the sum of its parts narrative. And that is the recent development with Wisconsin state judge, I'm not sure if it's Duggan or Dugan, but I'll say Judge Duggan, who people may remember was charged with allegedly helping an undocumented Mexican national evade ICE when leaving her courtroom in Milwaukee. She was then charged with and convicted of obstructing federal agents and then sentenced last week. The sentence was just to $5,000. Not just

• 25:29Kate Shaw?

  to, that's a significant sum, but there was no jail time and it was just a fine. And so I guess that is a good result in that there was, you know, I think almost up to two years of a potential federal sentence on the table. DOJ had just pointed to the sentencing guidelines range, but actually not, as I understand it, advocated for a specific sentence, but seems unhappy with this fine only sentence. So clearly did want some. Time. And I just, it seemed the entire episode feels so chilling to me, in particular in light of the judge's, you know, now defendant's, former judge, I guess she's not a judge at this point, statement that kind of referenced her conduct in the context of her obligation to her duty as a judge and to the sanctity of courthouses.

• 26:11Kate Shaw?

  And to the extent she did do what the indictment alleged, like that is what motivated her. Anyway, so I'm just curious if you had any reaction to that.

• 26:21Speaker 06

  Yeah. So, you know, in some of the other legal systems that I work in, there's an option in criminal trials to find somebody guilty but not dangerous, and then not impose any sentence, like, yes, you've strictly violated the law, but really, we're not going to make a big deal out of it. I think the biggest deal in the Judge Duggan case is here again, chilling effects. A lot of what the Trump administration is doing is singling out particular individuals for doing things that are minor. And in fact, under the evidence, it was really highly contested whether she was helping this particular person to escape ICE. The person went through a back hallway into the public hallway and right past the ICE agent.

• 27:03Speaker 06

  So either that was a bungled attempt to get him to flee, or it was just not what they charged. The crucial thing is that she's off the bench. Right? And so what this says is that they can swoop in and bring these charges for what does not look like intentional or harmful conduct, and get any judge off the bench at a moment's notice. Right? So that's the part that worries me is how many judges are now thinking twice about every time they handle a case involving somebody who may be undocumented? And also with courthouse rules, what you see is a lot of states now coming out with rules about ICE not being permitted on state property, for example.

• 27:47Speaker 06

  And this was a state court, as I recall. So, you know, so we're going to have a federalism battle here over whether the states can protect their own state institutions as sites of federal enforcement. I know in New Jersey, there have now been, I don't know, almost a dozen laws passed that restrict where ICE can operate and all this kind of stuff. And I'm just waiting for the lawsuits that challenge states' abilities to push back. So those are, I think, some of the bigger considerations here. But intimidation of the judiciary is something they're doing on many fronts. This is one of many.

• 28:21Kate Shaw?

  Indeed. Okay, so another development in the judiciary that involves, I think, an effort to kind of delay, but maybe not intimidate judges, and that is the one involving E. Jean Carroll, who may finally maybe getting some of the money that she was awarded in her lawsuit against Donald Trump. I mean, never underestimate his ability to delay, but it does seem like he may be out of, or almost out of, options in that people may recall that the Supreme Court denied his last ditch attempt to get the court to grant cert in his petition challenging the award of $5 million. That denial led to an order by the district judge before whom this trial unfolded, Judge Kaplan basically ordering

• 29:05Kate Shaw?

  this money in escrow be paid to E. Jean Carroll. Trump has gone to the Second Circuit already to challenge that order. He said he's going to ask SCOTUS to reconsider the denial of cert. But it seems like even if he does all of those things, at most, within a couple of weeks, this money should actually be transferred to E. Jean Carroll, although there again, remember, is the other lawsuit and award that she still hasn't seen, I don't think, a dollar from. So that all remains to be, you know, kind of finally resolved. And I think there's a cert petition pending out of that second case as well. Finally, one thing I wanted to flag before we moved on, there was another killing by ICE last week, this time of Lorenzo Salgado Araho, a Mexican national who's been in the United States

• 29:48Kate Shaw?

  for decades, as has become horrifyingly familiar at this point. Agents claim that he, he was definitely in a car, and the claim is that he, you know, steered toward them or went to hit them with his car. The companions in the car with him vehemently deny that account. But ICE did open fire, shoot him, and he died shortly thereafter. So I am sure that more facts will emerge about that Houston incident over the course of the next few weeks. We're going to take a quick break, but first, we believe the answer to right wing authoritarianism and all of the stooges who uphold it is a massive pro-democracy movement, and we want you to be part of it. So we are hosting a Strict Scrutiny live in Washington, DC.

• 30:31Kate Shaw?

  On November 6th, that is one day before the all day Crooked Con event on November 7th. Crooked Con will take place just after the midterm elections, so there is going to be a lot to discuss, like wondering aloud why God has cursed us with both Samuel Alito and Clarence Thomas at the same time. Join us for all the juris nonsense you can handle. Tickets for Strict Scrutiny Live and All Day Crooked Con are available at crookedcon.com.

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• 35:22Melissa Murray?

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• 35:37Kate Shaw?

  Let's now turn Kim to Hungary. I already gave you a general introduction, but I'm going to just briefly now give you a Hungary specific introduction, which is to say for our listeners that Kim's research on Hungary has been just totally essential to understanding how Viktor Orbán, who was the prime minister from 1998 to 2002, and then again from 2010 to 2026, really transformed what was a robust democracy inside Europe into an entrenched autocratic system. And her work is now playing a central role in understanding this new political chapter that Hungary is embarking on because in the spring of 2026, despite facing this incredibly

• 36:17Kate Shaw?

  unequal playing field with mass media entirely arrayed against the challenger and arguably rigged election system, an opposition leader who actually is a former member of Orbán's own party named Peter Majar and his brand new party, won over 70% of parliamentary seats, thus knocking Orbán and his Fidesz party out of power and pulling off an electoral upset that many experts thought was just utterly impossible. So this is obviously a time of real turmoil in the United States. And so I'm super grateful to have you here to shed some light on kind of what is going on in Hungary, what the consolidation that Orbán was able to affect looked like, and then how this new government.

• 37:01Kate Shaw?

  Is trying to go about rebuilding democratic institutions and the rule of law. Okay, sorry, that was a long wind up. Let's start just by contextualizing what Majjar was going up against in the 2026 election. Can you talk about what he was facing and how he was able to overcome all of it to walk away with this really resounding victory?

• 37:21Speaker 06

  Yeah, I think that Peter Majjar has a lot of lessons that we can learn here in the United States. The election system in Hungary was just totally rigged. Viktor Orban had been getting less than half the vote and two thirds of the seats in the parliament for more than a decade. And the secret to that rigging was that votes in the countryside counted two to three times as much as votes in the cities. Because what you saw in Hungary is the pattern we see almost everywhere, which is that, you know, the liberal elites are concentrated in cities, the voters who uphold the sort of populist autocratic leaders are in the countryside. And so, and, you know, in prior elections in Hungary, the unified opposition mostly

• 38:05Speaker 06

  campaigned in cities and the system was so rigged against them that even if they got a substantial vote, they couldn't win majorities in parliament. I mean, people were estimating before this election that the opposition could win a bare majority only if they got 55% or more of the vote, and that Orban could get two thirds of the seats if he got 45% of the vote. Okay, so that's how rigged the whole system was. So Peter Majjar jumped out of Orban's party. I mean, no one had heard of him before February 2024. You know, so a little over two years ago, he jumps out of Orban's party because there's a pedophilia scandal, not involving him, not involving Orban, but involving the pardon

• 38:47Speaker 06

  of a guy who had run a state school where a lot of the staff had been involved in a pedophilia ring. Okay, so this pardon generated a scandal. The justice minister was forced to resign. The president was forced to resign. The justice minister. Was the woman going through a contentious divorce at the time with a guy called Peter Maudyar. Okay, so he jumps out of the woodwork to defend his wife's honor as they're going through this whole messy divorce by saying to Orban, like, how dare you hide behind women's skirts? I mean, you can't make up this drama, right? But the point was, he was not somebody who was on the political radar screen before that moment.

• 39:29Speaker 06

  And then, you know, all the women listen up, like, would you trust a guy who did this? He had taped his wife's conversations over dinner, in which she exposed the corruption of the Orban government, which was apparent and which she knew about and which, we don't know the extent to which she participated, but she talked about it. So he comes out and says, how dare, you know, he hide behind women's skirts to Orban. And then he says, and I've got the tapes. Okay, so he goes on, like, by this time, all the media are captured. There are no TV stations, no radio stations that the opposition can even get their people onto for interviews. Peter Maudyar goes on to this YouTube channel that the opposition had set up, which turned out to be crucial, and gives this two-hour interview, exposing the tapes, exposing the

• 40:14Speaker 06

  corruption from inside Orban's government, and gets this huge following. Now, you know, I could go on and on with this level of detail, but let me just say, the reason for mentioning this is that, you know, sometimes people just pop onto the scene who aren't the expected folks. And this guy came out of Orban's machine so he understood how it worked, which was also, I think, crucial to his success. He also came out not with a left program or a right program, or the usual kind of political program, but first he was against corruption. And then, as crowds started to gather and as people wanted to hear more from him, he started to say, and, you know, the current government is massively corrupt, lots of

• 40:56Speaker 06

  evidence of that, and that's the reason why your hospitals are decrepit, that, you know, public transportation doesn't work, the school system's falling apart, they're stealing all the money so it's not going for these things. That kind of appeal, he stayed with through the entire campaign. So is that a left-wing program or a right-wing program? Really hard to say. So people always say to me, "Oh, well, he's just another right-winger." And the answer was, "You really couldn't tell from what he said." And he avoided hot-button issues of the right, so he said virtually nothing about immigration, for example. He also avoided hot-button issues of the left, so he said nothing about LGBTQ issues,

• 41:41Speaker 06

  which were really on the table since Orbán banned the pride parade and 500,000 people showed up the year before, not including Peter Magyar. So he just avoided all that and kept talking about, "They're corrupt, so you're not getting anything. And the reason why is that you've lost your voice. Vote for me. I will be that voice." Okay, so that's the campaign. He then spends two years going out to every single little village. I mean, there were more than 700 settlements. Hungary is the size of Indiana, okay? Imagine if you can figure out if there are 700 municipalities, that he went to all of them, somehow, sometimes with no budget. He would go in, no security, often driving a little pickup truck.

• 42:24Speaker 06

  He'd get on the back of it, start singing national songs, get people in the countryside to recite those poems with him that everyone had learned in grade school. And then he would do this pitch about corruption and the breakdown of public services. And there's a map, which shows you by little dots, like all the places where he actually showed up in person. And overwhelmingly, all those places voted for him. And so he broke the stranglehold that Orbán had on the countryside, because the whole system relied on that. And it had this trick in it, that if you won enough of the votes in the countryside, you'd get bonus seats. Okay, so in the last election, and Viktor Orbán had gerrymandered all the districts,

• 43:09Speaker 06

  there are 106 districts. In the last election, Orbán won 85 of the 106. This time, Peter Magyar won 96 of the 106.

• 43:20Speaker 06

  Which is to say, he mostly won by flipping parts of the country that had voted for Orban for 30 years. So, so the lessons here are you need somebody who understands how the system works. If you run a campaign that's hard to classify as left or right, but that focuses on corruption and what it's done to your life. You know, and then you figure out how the system is rigged and you run your campaign to play into the rigging rather than, you know, because you got to win that first election. So anyway, so Peter Mauder won with two thirds of the seats in the parliament in a system where the constitution can be amended by a single two thirds vote of the unicameral parliament. So here we are, off to the races.

• 44:04Kate Shaw?

  Okay, yeah, and I do want to talk more about sort of what he has done and what is on the near term horizon, but a great set of lessons there. One, the focusing on corruption, but connecting it to the material conditions of people's existence, not some abstract moral message about anti-corruption, but a tangible one that connects it to people's lived experiences. And then that interesting combination you described of first using mass media. So I gather, you know, my understanding is that Orban had basically captured much of mass media, but using one of the pockets that is not captured, right, the ability to go via YouTube directly to the people. And then I presume continuing to speak directly to the people wherever possible en masse,

• 44:46Kate Shaw?

  but going at this very retail level to meet people where they are, in particular in the countryside. Although that last piece is a little hard to imagine scaling in a country as big as ours. But, you know, a lot of it does seem potentially like, you know, it holds important lessons for some successful anti-Trump, anti-MAGA movement here. But maybe to, I just, I wanted to ask a question, and this kind of comes from this terrific piece you wrote, I think in your Substack, Things That Are Solid Can Melt Into Air, that covers a lot of what we're talking about today. You talk a bit about why Orban was able to consolidate and hold power as fully and for as long as he did. And so I want to sort of describe the argument there and ask you to talk a little bit about it. So you basically say the Orban

• 45:30Kate Shaw?

  Orban government was able to be as successful at consolidation as it was by achieving four main goals, by having a tolerably functioning state, having a steadily growing economy, a credible moral message, and the projection of invincibility. And you say, in the run up to 2026, where Majer topples him, all four of those pillars start to crumble. So the crumbling is one thing, the communicating to people about the reasons for the crumbling, as I think you were starting to get into, may be something different. But can you talk a little bit about how Majer capitalized on all of that in his opposition campaign? And then maybe if you want to connect, are those, how if at all, do those pillars project

• 46:12Kate Shaw?

  on what MAGA has been able successfully to do insofar as it's been able to, well, they were, you know, they had one term in power, and obviously Trump was able to then successfully return to power. So, or are those pillars kind of distinct to the Hungarian experience and not particularly applicable in the United States?

• 46:31Speaker 06

  Yeah, so in many ways, you know, Trump has capitalized on these same pillars. So, tolerably functioning state. I mean, the US mostly had a functioning state before Doge took a chainsaw to pieces of it, right? But he inherited a functioning state. So this was sort of not the problem. He also inherited a booming economy, you know, thanks to the prior regime, but also the world was on its way up too. And, you know, he had a moral message. Part of it was drain the swamp, although he seems to have created a swamp. I mean, the other thing about the reflecting pool is that there's the swamp. But anyway, I mean, so there was this kind of anti-corruption message that Trump was actually using. And

• 47:15Speaker 06

  also, the state is too big and it's too much in your life, and, you know, I can save you and I am your vindication and so forth. So he had all of that. And what's been interesting to me about Trump, because, you know, Orban had all those things too, and the reason why Orban lost them was because of the corruption. The state stopped functioning because of the corruption. The economy was challenged in part because, and I have to admit my conflict of interest here because I've been working on Hungary for a long time. After my court was captured in Hungary and it was clear the legal system wasn't going to help us, I and a group of my friends under a project called Reconnect tried to lay the groundwork for the EU to cut the money they were giving to Hungary.

• 47:59Speaker 06

  It was in some years 6% of Hungarian GDP. And a lot of the corruption in Orban's government came from the fact that the EU was, you know, generating this fire hose of money which Orban then diverted to his cronies. And all of us knew that's where the corruption was. We had to convince the EU to stop. And they stopped the money in December of 2022. This was a 10-year project by some of us to get them to do it. And sure enough, they stopped the money to Hungary and Poland, actually, which also had an autocratic government, wasn't as entrenched as Orban's, but was still on that track. Poland switches governments at the next election, and now Hungary switched governments at the next election.

• 48:41Speaker 06

  So it's the economy, stupid, you know, still kind of matters. And so what we're seeing now, of course, in the US is that between the tariffs and Iran and the oil prices and whatever, Trump seems to be doing exactly the things that are going to tank the economy, you know? And I don't understand whether he doesn't get it or whether he thinks that rigging the election is going to mean it doesn't matter. Because Orban also rigged the election, being worried that all this stuff, I mean, Orban started rigging the election in 2013, but even so, he rigged it even more for this last couple of rounds. So, you know, I'm just, all of that stuff started falling apart under Orban. And I'm wondering if we're seeing this.

• 49:24Speaker 06

  And the moral message doesn't, I mean, if Trump was campaigning against corruption, he doesn't really look like he's doing that anymore, right? So, so those same pillars, I think, are also weakening here. So it's not just a savvy campaigner. But I do want to say just one thing about media, because, you know, Orban really controls 80% of the media in Hungary by one estimate. And the opposition really had no traction in any TV, any radio, any of the major print media. They have a few online news portals and so on. What was crucial was Facebook. Arians are on Facebook, okay? And the EU, again, this was another campaign a lot of us were trying to engage in at EU level.

• 50:08Speaker 06

  The EU had banned political advertising on Facebook. And Orbán had done a huge amount of political advertising on Facebook, and suddenly he was caught off guard because that was one of his major tools. So what happened is that the opposition was great at using Facebook. If I can just give you one example. The, there was this great anti-corruption crusader in the parliament, this independent member of parliament, Akos Hadhazy, who is, as I guess we would say, a large animal veterinarian, right? Dealing with like, not with cats and dogs, but cows and horses and so on. He, Orbán's father was building a sort of Versailles-like palace outside of Budapest.

• 50:50Speaker 06

  And everyone knows it's Orbán's money, it's nominally his father's money. Anyway, Hadhazy rents a drone, flies the drone over this complex, and discovers that there are ten zebra inside this thing. And of course, you know, Hungary natives, zebras are not native to Hungary. It's this, you know, and, and everyone probably in Hungary would recall that when Viktor Yanukovych, the Russian-backed president of Ukraine, fled, they discovered his own private zoo with all these exotic animals as a kind of a symbol of the corruption of Ukraine. Well, what happened, this is the Facebook point, all of, all of, this whole group of young followers of Peter Molyar started memifying the zebras, right?

• 51:35Speaker 06

  So like, the zebras were everywhere. People would then show up at Molyar Valley's wearing zebra costumes, but, or they'd put little zebra insignia on things. And it just became the memified symbol of all that's wrong with Orbán's corruption, right? So that's how to use social media, right? Because it, you can, I mean, here's this thing that actually happens, and there's this veterinarian who then files an animal cruelty complaint with the authorities, saying, "I want to go check the zebra." They don't allow him to check the zebra. So he drags out the story for a long time about these zebra, right? But, but, but the youthful followers of Peter Molyar memified the zebras. And they memified a lot of stuff. So everyone, they had a great comms team, like, every time there was an attack, there was an instant response on Facebook.

• 52:20Speaker 06

  So, you know, social media are not always an enemy of democracy. You know, sometimes they can be like the only thing that provides an opening for the opposition if the government has cowed or controlled, you know, most of the media to defend what the government is doing.

• 52:36Kate Shaw?

  So interesting, you know, 15 years ago or so, it did seem as though social media was actually an hugely important tool of kind of building democracy and democratic resilience. And then in recent years, that has seemed much more like an enemy. But that's really an important, I guess, counter to kind of now congealed conventional wisdom, which is that, you know, the tech oligarchs have been changing the rules to stifle democratic movements. But actually, the kind of anti-political advertising move, which I think was very controversial when Facebook adopted it, actually has, did end up really inuring to the benefit of the Hungarian opposition. That's such an interesting point, and I had not heard the

• 53:16Kate Shaw?

  zebra story. So that all feels really encouraging and exciting. So you have a combination of internal collapse somewhat as a result of this external EU spigot being turned off. Maybe we are doing the collapsing internally ourselves without any such spigot being required in the United States. And then the kind of multi-platform mobilization that obviously is ultimately successful. So now I think let's shift to the kinds of challenges that a new leader like Majar Majara in particular face after ascending to power following these, you know, autocratic or aspiring autocratic regimes. So you emphasize, including in your Things That Are Solid Can Melt Into Air piece, that post-election euphoria fades quickly,

• 54:01Kate Shaw?

  especially when a new administration, as in Hungary, inherits broken infrastructure and budget deficits and, you know, there's an entrenched opposition. So how are Majar and his team approaching this project of democratic repair from rebuilding agencies to restoring expertise to replacing fear with professional norms and getting basic services to work again? So like, how are they doing that? And then I want to turn to some potential lessons for us from all of that.

• 54:33Speaker 06

  Yeah, so we're only a couple of months in to this new government. Most of the people that Peter Marder brought into his government have never been in government before. He did build a cabinet of experts. So, for example, the new foreign minister has a PhD in law and diplomacy from Tufts, and she left her job as vice president for communications at Vodafone London in order to take this job. So she's had experience in the international business sector. The guy who's now the health minister, actually, if anyone's seen anything about the election, both on election night and then on the inauguration night, the guy who became the health minister was dancing. Did this incredible dance.

• 55:13Kate Shaw?

  Oh, that guy, yes, yes, I think we all saw it.

• 55:16Speaker 06

  Just singled it out, like, two days ago for one of, like, the coolest people in the world, you know? That got a lot of headlines in Hungary. He was, like, 37th on the list of 39 cool people. Anyway, but, I mean, that guy, I mean, he's an orthopedic surgeon who spent 10 years working at the National Health Service in the UK, having pioneered some orthopedic surgical techniques that they use there. So, you know, real expert. And I could go through a lot of the rest of the cabinet, but it's people who know the portfolios well that they're working on. And they've all been given license to just fix your sector.

• 55:50Kate Shaw?

  So move fast and fix things is sort of the inverse of move fast and break things. I like it. I think I like it.

• 55:55Speaker 06

  Let's use that slogan. That's great. So his cabinet is doing that kind of stuff. The bigger problem is what do you do with all the entrenched autocrats? Because there are roadblocks. So the president of the country, who has to sign all laws and constitutional amendments, is a Fidesz holdover. And he signed everything Orban put before him. He's been involved in some of the worst of the worst abuses of the Orban government, at least legally stamping them, because he was president of the Constitutional Court before he was president of the country. You can just give this laundry list of stuff that he approved. Suddenly, he's coming out and saying, "We need checks and balances." And somebody needs, you know, like, they never said that when it was their government, right? So he's there.

• 56:39Speaker 06

  Peter Marder wants to fire him, has put a law before the parliament that would result in the president being fired. Ditto with the Constitutional Court. So they have a court, it just handles constitutional questions, so it's part of our Supreme Court docket, but very powerful, and they have a role in everything. And it's totally packed after 16 years of Orban. Fifteen of the judges were appointed without any serious inter-party discussion. So, and that's the other roadblock. So, according to this new law that Peter Magyar put on the table, the president would just be fired, and the judges of the Constitutional Court, five of the judges, would be fired because they instituted a new retirement age of 70, which was the old retirement age

• 57:24Speaker 06

  that Orban lifted in part to put these people into place. And now what's happening, and this is really something I didn't expect, Human Rights Watch, and we don't know yet about the Venice Commission, but other human rights groups, human rights groups are saying, "You can't just fire people like that. They have due process rights." And I'm thinking, "Really?" I mean, so, and the Venice Commission, which is this consultative body in Europe that looks at whether governments are meeting European standards, did the same kind of thing when Poland and Ukraine tried to undo the corruption and the autocratic capture in their systems. So, we're running into this conflict

• 58:09Speaker 06

  between the human rights advocates who say "The people who were in those jobs deserve due process, and you can't violate the rule of law by breaking the law and firing them." I mean, think about the contrast with that and slaughter, for example, right? The good news is that in the US with slaughter, if we can get a president in who is interested in actually restoring expertise and bipartisan participation in multi-board panels and stuff like that, a new president can do it, no trouble. Maybe that's good, right? So, in Hungary, what they're confronting is this wall of opposition now. And I think Peter Magyar is going to go through and fire them and make them sue. But it's not a very elegant solution.

• 58:53Speaker 06

  The problem is there aren't very many elegant solutions. Just to say one last thing, the, what Orban did was to, so the president could have been impeached by the parliament. They changed the law last December to make that impossible.

• 59:10Speaker 06

  The people who are on the Constitutional Court, the current president, whose term, by the way, lasted till 2037, was just installed last year as the result of an ad hominem law that allowed him to go straight from heading the public prosecution into the court when that move had been barred by law before. So one of the other ideas is to go through and unravel all the ad hominem, ad personem, you know, laws that were constructed in order to put specific urban loyalists into these jobs. The other thing is to reduce the length of terms of these offices. But in order for it to be effective, it has to apply to the current occupants. And then we get into a situation like we're talking about with the Supreme Court here,

• 59:53Speaker 06

  circling back to packed court, right, as a theme. If you've got institutions that are packed, how do you unpack them? What's going to happen is that there will be challenges like the ones we're seeing in Hungary. You can't fire the judges because they have live tenure. You can't limit their terms because they weren't limited before. You have to, if you're thinking about putting term limits on, I forget what the estimates are. I think, hey, you'll remember more than I, but it would take, what, 20 years? Before you had a meaningful rotation with the current occupants. Something like that, yeah. Yeah, something like that, right? So when you have these transitions, you need immediate change. And just to say one last thing, I mean,

• 1:00:37Speaker 06

  I think our court's been packed, you know, since Trump won, at least, since he got three seats on the court. And what happened, and you've covered this on the pod in great detail, when you have a packed court, when you have these institutions, and then you get an election that flips things, these are called in the political science literature U-turns, right? So you're a democracy, you go down into an autocratic capture, then you try to make a U-turn back up into democracy. There is not a single case in the political science literature of any country that's made a successful U-turn that lasted longer than five years.

• 1:01:15Speaker 06

  Going back, I think, 50 years now. Okay. Why is that? It's this problem that if you've got autocratic capture of institutions, those institutions veto what the new government does. So that the new government doesn't look effective. They lose support. And because these autocrats still have supporters, they come back at the next election. Think of SCOTUS. What did they veto of Biden's initiatives? All the things that would have made Biden look instantly effective. They let slide everything that had long-term consequences. But if you just think about it this way, I mean, just student loans is like the first example that comes to mind. But there were things Biden was trying to do to achieve immediate results.

• 1:01:59Kate Shaw?

  Yeah.

• 1:01:59Speaker 06

  That's where the court swept in and said, no, you can't do it. So when Biden was going to be up for reelection or when Harris replaced him, the argument was, what did they do with four years? And that was largely the fault of the packed court. Okay, that's happening in Poland, where the packed Constitutional Tribunal and the president as a veto player have prevented the new pro-democratic government from achieving the change that they promised. Peter Mauder knows those cases, right? And so he's come in, hit the ground running, and he's just going to try to fire all the veto players. And now you've got human rights groups, human rights groups. I just, anyway, don't get me started on this. I had a conversation with the leader of one of them yesterday. And I said, look, you know, what about democracy?

• 1:02:45Speaker 06

  He said, that's somebody else's lane. We just do human rights. Okay, so unless you fire or really get rid of the roadblocks left over from autocratic capture, what you get is the reelection of Trump, the reelection of peace, the reelection of Bolson Aronson in Brazil. We can talk about that one. So they're all on that track to have one good election and then go back to the old system because these autocratic institutions are captured.

• 1:03:11Kate Shaw?

  Right. And if you're not sufficiently ambitious in the project of undoing what was done, then it's going to be a blip, sort of a fleeting reversion to the pre-autocratic norm and then, and not actually fundamentally affect enough change that is going to alter the trajectory that the society's on. Wow, nothing more than five years in terms of recovery in a half-century is a really, really stark statistic.

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• 1:05:43Speaker 07

  Hola, es Mr. Monopoly. ¿Has soñado con ganarte 50,000 dólares para el pago inicial de una casa? ¿O una gift Cherokee del año? Monopoly volvió a McDonald's. Y esos son algunos de los premios que podrías ganar. ¡Fe por lo tuyo! No se necesita comprar 50 estados de Estados Unidos y DC. 18 años o más. Consulte las reglas en PlayatMCD.com y PlayatMCD.com/ME para información sobre jugar sin una compra por correo antes del 2 de noviembre. El Chance Card Game termina el 8 de noviembre. El juego termina el 22 de noviembre de 2026. Detalles de los premios en las reglas. Monopoly es una marca registrada de Hasbro.

• 1:06:18Kate Shaw?

  I think you're anticipating some of what I'm going to ask you about the US in a hypothetical post-Trump world, but a couple more hungry questions that what you were just saying have spurred for me. One, what is Majer doing or thinking about doing with the media, which you said was largely captured under Orban, and he had to circumvent in order to get to the people at all when he was seeking to build this opposition? And then, since we're talking about judges, there's been this judicial reform movement called Operation Purifying Fire that is distinct, I think, from this effort to remove some of the judges on the Constitutional Court. So can you talk both about Operation Purifying Fire and the media, just to say a bit more

• 1:07:03Kate Shaw?

  about, to pull a little bit more on some of the threads that you were just identifying?

• 1:07:06Speaker 06

  Yeah, so the media piece has gone even faster than Operation Purifying Fire. So the first thing is that they have a public broadcaster. Most European countries have a public broadcaster. When you get the state, you get the public broadcaster, okay? And Orban had packed the public broadcasting system with his loyalists. They had been broadcasting fake news for 16 years, okay? Peter Majer came in, and the first thing that was very interesting was that there were a couple hundred employees of the public broadcaster. Who wrote this petition to Peter Molyar that said, "We're sick of producing propaganda. We would love to produce real news." They were trying to keep their jobs, okay, but they're also willing to switch sides. And they invited Peter Molyar on for an interview with the chief news,

• 1:07:48Speaker 06

  you know, reader in the evening, kind of the name, the Walter Cronkite of Hungary. If anybody remembers Walter Cronkite, that will date me. But, you know, some major news presenter. And Peter Molyar gets on the television and he says to her, he said, "You have been nothing but a factory of lies, and I am going to make sure this stops." He says this to her in the first opening interview, because he'd never been interviewed on the primary news channel through the entire campaign. Okay, so that was public broadcasting. What they've done with public broadcasting is they just shut it down. About four days ago, this statement appeared on people's television screens. I have a million pictures of all my friends sending me the picture of this appearing on the screen. And what it said, in Hungarian, of course, was,

• 1:08:33Speaker 06

  "This has been a network of lies. We are going to remake it so from now on it will bring you only certified facts. Stay tuned." Okay? And this kind of stays on the screen. And then they start broadcasting all these old communist era films that hadn't been broadcast for a long time because they were criticisms of the communist regime. And once you broadcast them in the context of Orban, it's clear that it extends also to them. So they've been doing this, like, anyway, this kind of film festival of great Hungarian films. What they're doing is they're redoing the whole system. They announced a new editor in chief. They brought on board real journalists. I mean, people who have been stringers for the international press, people who really have backgrounds.

• 1:09:17Speaker 06

  So they're going to remake public television. Okay, that's part one. Part two, there's a commercial station, TV2, which is really the one that most people watch. The day after the election, it's run by a private company. The private company fired the news director and the entire news staff and has not had any news since. Okay? They were also a propaganda channel. And finally, Orban had set up this thing called a media council, which was a public agency headed by, for the last 10 years, this guy Anders Koltai. And what they did was they had the mandate to ensure that broadcast and print and linear and online media were broadcasting news that was, they even borrowed the Fox News slogan, translated into Hungarian, "free and fair."

• 1:10:04Speaker 06

  And so what this agency would do is go in and find news outlets that were not producing Orban-friendly news. And in some cases, shutting them down, I mean, media precarious financially everywhere. You add these crippling fines and the media would be staggering under debt. And then Orban's oligarchs would swoop in and buy them. So the Media Council was crucial to a lot of the media takeover. And Coltay was being called by people in the Mordjar orbit, but also in the traditional opposition, the chief censor. They just passed a law last week dissolving the Media Council, firing Coltay and setting up a new sort of broadcast authority whose members will be appointed by journalists.

• 1:10:49Speaker 06

  So, yeah, Operation Purifying Fire. So that's the one to get rid of what Mordjar calls Orban's puppets. So it's the job to get rid of the president, the Constitutional Court, president of the Supreme Court, president of the Competition Authority, Procurement Authority, there's a whole list, the Audit Office and so on. And so they've started this process now of trying to get rid of them. They're using a lot of Orban's tactics in reverse. So Orban got rid of a lot of people by suddenly instituting a new retirement age. They've just done that. They also got rid of a lot of people by dissolving agencies and creating new ones in their place. That's what just happened with the Media Council. So they're doing a lot of Orban's tricks in reverse.

• 1:11:34Speaker 06

  Now, there is a worry here because he has this constitutional majority. If he does this, there are no checks on his power. Okay, I do believe in checks and balances, but you can't, the checks can't be the checks left over from the autocrat. Okay, so there are a couple of things that are hopeful here. One is that one of the first, the first constitutional amendments that Peter Mordjar pushed through was an amendment that limits the lifetime term of office of any prime minister to eight years. Orbán's already had 20, right? So he's disqualified. But Peter Modjár said he would also abide by the amendment. So that limits his power. Okay, that's good. Part of Operation Purifying Fire also says that members of parliament are limited

• 1:12:19Speaker 06

  to three terms or 12 years in the parliament, and then they have to step down, trying to push rotation of power. This is also controversial because it gets rid of Orbán's people, but it also gets rid of the traditional opposition parties that backed Modjár. And his people, who are all brand new, have a longer run at it. So that's controversial. But they're just, they're trying all kinds of things to get rid of the autocratic placeholders. And, you know, what I really wish the international human rights organizations and the international monitoring bodies would do is to come in and say, when you're making these changes in order to restore democratic checks and balances,

• 1:13:02Speaker 06

  it's different than when you do it to entrench autocracy by sticking your people into those positions. And so far, I must say, we're running into a wall of formalists, right? Who say, nobody can fire a judge ever. And it's like, really?

• 1:13:19Kate Shaw?

  Yeah. Well, I'm reminded of something that Leah said on a recent podcast, which is that, you know, at least in our system, motive matters in constitutional law. So if you're trying to change the rules in order to entrench an autocrat in power, that is just fundamentally different from trying to change the rules to restore democracy. And we don't have to pretend in this hyper-formalistic way that those two are the same. And I was also reminded while you were talking of something that your colleague, Jan Werner, and the former Hungarian judge Andras Sziajó have talked about, this kind of militant democracy or militant rule of law. Sometimes you need to use fairly aggressive tactics that don't fly and shouldn't in normal times in order to restore democracy and the rule of law. And I take you to be making the point throughout this conversation

• 1:14:03Kate Shaw?

  that these kind of retreats to formalism are fundamentally self-defeating in extraordinary times like this one. And that's true in Hungary. And it's true forever in a post-Trump moment. Here. So maybe let's turn to that. What would a post-Trump moment look like? And what should individuals seeking to rebuild and restore prioritize? So I guess, what would you say is the first one or two or three kinds of reforms that need to be undertaken quickly before the old regime has a chance to regroup? If, say, we are in 2029 in a post-Trump presidency, there could be a single term and then there's a return of MAGA in some form, or there could be long-term restoration of real broad-based,

• 1:14:48Kate Shaw?

  multiracial participatory democracy in the United States. Like, what would that kind of top three, say, priorities look like to you?

• 1:14:57Speaker 06

  Yeah. So I think the first thing is doing something about the Supreme Court.

• 1:15:00Kate Shaw?

  Okay.

• 1:15:01Speaker 06

  Because it has been packed.

• 1:15:02Kate Shaw?

  Music to my ears, Kim.

• 1:15:03Speaker 06

  Yeah, lots of things you can do. I must say that the proposal that's mostly floated, which is, let's just go up to 13, you know, let's just pack it. It's too easy to do that in reverse. There are a couple of ways to do that differently. One was a trick, actually, that Orban and Erdogan used when they packed their courts. We can use them to unpack ours, which is if you increase the jurisdiction of the Supreme Court so that it has to hear more cases, take away its discretion to make it hear more cases, and then say, because there are more cases, we need more judges. That would be one way to do it. The other way to do it is a proposal that I've heard that I really like, right? Which is, Constitution says there shall be one Supreme Court. Okay, we've got that.

• 1:15:48Speaker 06

  It says it has this jurisdiction. Limit the Supreme Court to original jurisdiction. Create a separate court underneath it, which is the general, we can call it the General Court, the Federal Court, which handles all the other business of the Supreme Court with no appeal, cert or otherwise, to the Supreme Court. Because Congress has the power to make other courts. This is consistent with what the Constitution says the Supreme Court should do, and we just make another court. I like that one. And then you can figure out how not to just pack that court, right? It can't just be that if you get a Democratic attric of, you know, all of the relevant presidency in both houses, that they just take it over, right? You've got to actually make it literally a check on the power of that triumvirate.

• 1:16:32Speaker 06

  You know, that's hard, but you got to do it. So anyway, so doing something about the Supreme Court is first. Second is slaughter is awful and slaughter is a gift, right? Which is to say, a new president can come in and fire all the holdovers. That's the problem Peter Mondale is having. We won't have that problem because slaughter will give the president the power to fire those folks. Now, the question is how to then entrench expertise and bipartisanship and other kinds of checks on the executive agencies. And, you know, here's where, I mean, constitutional amendments are impossible. I think there may be ways for Congress, if we could get Congress to move on something, to actually entrench, at least we can start with some things about expertise and civil service and so on.

• 1:17:17Speaker 06

  So, but I think slaughter is actually a gift to whoever's going to come next, but important gift. And the third thing is that I think we've got to make our system somewhat more, we have lots of choke points and so on, but I think we also have to think about federalism. We can do that now, right? The blue states are kind of a refuge from some of the stuff that, that the federal government is doing. The blue state AGs have been probably the most active, single, you know, group of litigators. They've played on the, on the landscape so far of federal law. I think we need to bolster state law. I think we have to increase the powers of states and try to cut back some of the doctrines that have allowed the federal government to override states.

• 1:18:02Speaker 06

  The reason why is that if we get an autocratic comeback, this is the, this is the bulwark, right? And that's going to be hard for a government that will want to centralize things. But I think we also have to boost the powers of states, you know? Who knew? I never thought I'd be a states' rights person when I started in this field, but I, looking at this, the thing that saves you from autocracy is complexity, right? You need more choke points that have to be captured before an autocrat gets it all.

• 1:18:32Speaker 06

  And with our one captured Supreme Court and with our paralyzed Congress, I'm afraid that's made us incredibly vulnerable.

• 1:18:39Kate Shaw?

  Yeah. Okay, so that's a great sort of agenda for the first, say, 100 days. Are there specific things that you can identify that are particularly dangerous mistakes that a post-autocratic Democratic government might make in, say, that same first 100 days? I have some sense of what you might say based on the conversation we just had, but I'm curious what you'd identify.

• 1:19:02Speaker 06

  Yeah, so I think that you need an election victory like the one Peter Maudia had, which is to say overwhelming.

• 1:19:09Kate Shaw?

  A big one.

• 1:19:10Speaker 06

  A big one. The problem in places like Poland and actually in the US and Brazil, these are close cases, right? And it's very hard to do big reform with close cases, close elections. So what you need is a big tent. And you need that big tent to provide the checks and balances if you can capture the hat-trick, right, of the presidency and both houses of Congress. And by that, I mean, after the election, the big tent becomes a set of factions that have to be satisfied so that if you're going to set up a new court, it's not just, you know, one particular, it's not just the homeless Republicans or the social Democrats or like whomever, but they have to figure out among themselves

• 1:19:55Speaker 06

  a way of trying to develop and build checks into a system. It's hard to make that transition from big tent, we're in this together to win an election, to now we're going to govern and we have to be mindful of the fact that we can't grab all the power that we have. So that's the pivot that's hard. And that's what the Maudia government's going through right now. And I'm not sure they have the pivot exactly right. You know, there's always a danger that an autocratic force can replace an autocratic force. The thing set up to just go into the driver's seat and drive that truck down the road, especially if it's someone who comes from inside the party that captured things, as in the case of Hungary. So you need immediate checks that may not be institutional,

• 1:20:40Speaker 06

  but may need to be public, may need to be civil society as government is being remade. So you need checks and balances all the way through the system.

• 1:20:49Kate Shaw?

  Right, but just maybe not the ones that we have become, that we've been accustomed to thinking about. They can take different forms.

• 1:20:55Speaker 06

  Exactly.

• 1:20:55Kate Shaw?

  Expand our imagination in terms of what those checks might look like. I think that's a great point. Okay, before I let you go, I just actually wanted to ask one specific question. We have referenced Poland a couple of times, and there's this really interesting new initiative called Justice in Motion that is based on something that a bunch of Polish judges did. So Justice in Motion is a US advocacy organization-backed effort that I think a few of the organizations Democracy Rising Collaborative, Keep Our Republic, and Ohioans for the Rule of Law put together for this last week. And this was modeled after something that Polish judges did in 2020 and 2021, when Poland's ruling party started

• 1:21:37Kate Shaw?

  dismantling judicial independence. And a bunch of judges basically took to the road, basically went to towns and villages to talk to the people about why preserving an independent judiciary and the rule of law was the foundation of a free society. So these groups in the US are trying to do something similar with this bipartisan group of sitting and former, so not just former, but also sitting judges and lawyers and civic leaders. So I'm just curious if this is something that's on your radar, that is an example of the kind of creative civic engagement and the kind of direct-to-the-people effort that sounds a lot like what Magyar did in building his campaign in Hungary, and what you make of efforts like this?

• 1:22:21Speaker 06

  Yeah, so I love this idea. And it was very effective when it was carried out in Poland. I might say that one of the ways that the Polish case was a little different, though, was that the Polish judges, who had been incredibly beleaguered, called in their colleagues from all over Europe. So when they did these marches of the judges, you know, all in their robes, it was not just Polish judges, but judges who came from the Netherlands and from Germany and from France, and it was thousands of them, you know. Now, I'm not sure that the US listens much to judges in other countries. So I guess that wouldn't, really wouldn't happen here. But still, this idea that you get judges, I mean, because judges are not politicians. And people need to see that judges are not politicians.

• 1:23:06Speaker 06

  And that the rule of law is not the same thing as democracy, although crucial to it. Right. And so the judges are the best ones really to explain that. And of course, many judges are talking to the public all the time. They talk to juries, they talk to litigants, they're trying to explain the law to non-lawyers. Like your podcast, right? And I mean, this is something that we all need to start doing. And I think that this seeing judges in robes out of the courtroom, you know, rule of law doesn't just happen in one place. It's just such a great idea.

• 1:23:37Kate Shaw?

  That is, I think, a wonderful place to end. Maybe before we go, can I ask you to stick around and recommend a couple of either pieces to read? We've, you know, veered off into music movies, et cetera, recently. I was just going to recommend a book and an article, so maybe I'll go first. And the first is, Matt Schwartz at the New York Times had a kind of eye-popping profile of now Third Circuit Judge Emile Bové last week in the Times that opens with this anecdote about Bové still having his like screensaver on his cellphone, a picture of Trump, which is not something that judges typically do. So, you know, I definitely recommend that profile to people. And the other is a book I'm reading right now.

• 1:24:23Kate Shaw?

  We've talked now about the civil service a couple of times in this conversation. The book is a memoir, and it's called The Mailman by Stephen Staring Grant. And it's just about life as a rural mail carrier, only for a brief period. This author had a different career before that, and then COVID hit, needed to find a job with health insurance and took up delivering mail in rural Appalachia where he's from. And it's just a pretty incredible account of life inside this crucial part of the federal government that is both visible, because we actually do know our mail carriers a lot of the time, but also invisible in that there's so much about the way the post office works that I just didn't know, even though I've actually read about it a good amount. And it's a fascinating memoir that I'm really enjoying. And I think is a sort

• 1:25:08Kate Shaw?

  of quiet reminder of the nobility and importance of public service. And so highly recommend that. Over to you, Kim.

• 1:25:17Speaker 06

  Oh, that's great. Yeah, well, it's summer. So, you know, a lot of summer reading. So I'm about halfway through Maggie Haberman and Jonathan Swan's Regime Change, which is, I mean, I'll tell you, if you were alarmed before, this will make you more alarmed, just the detail of the way that, I mean, we were talking about the reflecting pool, but the way that Trump has just been obsessed with trees, maple trees. Anyway, so I mean, just what you see, what the president's thinking is just kind of alarming. But it's also crucial because you get to see, so who's actually doing things in the White House? I have another half finished article. It's called Trump is a They, Not a He, because I think if we sit here and try to psychoanalyze Trump as if he's like the only thing running

• 1:26:01Speaker 06

  all this, we miss the fact that he doesn't know most of what's happening in his name. And I think you see in that, you know, exactly how that works. Another book that I can't recommend enough is Nicholas Enrich's book Into the Woodshipper. This is a book, this is a guy.

• 1:26:17Kate Shaw?

  About USAID, yeah.

• 1:26:18Speaker 06

  USAID. But if you want to see what this Trump destruction looked like from the inside, I mean, that's just such an amazing, amazing book. But then, you know, I think another thing to do is to pull out and read some things that put this into a kind of historical perspective. So Sinclair Lewis, It Can't Happen Here, you know, written actually when the fascist threat was really quite real. Here we go all over again, really worth reading that all over again. If you want something longer, more elevated and harder to read, but still it'll make you feel good about yourself. Hannah Arendt's Origins of Totalitarianism. Is a real classic. There's just a whole bunch of stuff in there that will resonate

• 1:27:00Speaker 06

  with our current moment. Ernst Frankl's The Dual State is another one of those, kind of a slog, better for lawyers, because this is a guy who's a Jewish lawyer in Berlin in 1938, reporting on what he's seeing happening as the, you know, as the legal system under the Nazis starts to fall apart. So, you know, those are all things. But then again, you know, we should actually also have fun. So the thing I feel I've been fascinated with, it's on Amazon Prime, actually, Gok Wan's Easy Asian. This is the Style Maven who teaches you how to cook Asian food. Okay, so if you want something that has nothing to do with politics, the guy is hilarious. So, anyway, that's, that's a

• 1:27:43Kate Shaw?

  A little escapist recommendation, that we all need some of that.

• 1:27:46Speaker 06

  And actually, one other thing. So I recommend this to my students, and I think, actually, it has now a really good reason for seeing it now. There's a Danish series called Borgen. It's actually a decade and a half old or so. It's like the West Wing for parliamentary government. So if you want to see how parliamentary government operates, it's great. But season four, which was released only a few years ago, is about a potential takeover of Denmark by competition between Russia, China, and the US for Denmark. I think Trump saw that season four of Borgen, and that gave him ideas. So if you want to see season four of Borgen, if you want, a political escapist thing to watch, that's the thing to watch.

• 1:28:29Kate Shaw?

  I doubt he's watching prestige European television, but maybe someone in his orbit did.

• 1:28:33Speaker 06

  It has subtitles. You can't quite imagine doing that.

• 1:28:35Kate Shaw?

  I doubt it.

• 1:28:36Speaker 06

  I'll tell you, it really does resonate now.

• 1:28:39Kate Shaw?

  Is it eerie? Okay. All right. Well, we'll have to check all of that out. Kim Lane Shepley, what a great set of insights. Thank you so much for joining me today.

• 1:28:46Speaker 06

  Oh, thanks for talking to me, and thanks for all the work you do.

• 1:28:55Kate Shaw?

  Strict scrutiny is a Crooked Media production. Our show is produced by Melody Rauel and Michael Goldsmith. Jordan Thomas is our intern. Our team includes Matt DeGroot, Ben Heathcote, Johanna Case, Kenny Moffett, Eric Schut, and our music is by Eddie Cooper. Our production staff is proudly unionized with the Writers Guild of America East.

• 1:29:23Speaker 07

  Hola, es Mr. Monopoly. ¿Has soñado con ganarte 50,000 dólares para el pago inicial de una casa? ¿O una Jeep Cherokee del año? Monopoly volvió a McDonald's. Y esos son algunos de los premios que podrías ganar... ¡Fe por lo tuyo! No se necesita comprar 50 estados de Estados Unidos y DC. 18 años o más. Consulte las reglas en playrmcd.com y playrmcd.com/me para información sobre jugar sin una compra por correo antes del 2 de noviembre. El chance card game termina el 8 de noviembre. El juego termina el 22 de noviembre de 2026. Detalles de los premios en las reglas. Monopoly es una marca registrada de Hasbro.

• 1:29:53Speaker 04

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