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Leah, Kate, and Melissa preview January’s major SCOTUS cases, including disputes over trans kids’ participation in team sports, a concealed-carry ban in Hawaii, and Trump’s attempt to fire Federal Reserve Governor Lisa Cook. The hosts are then joined by Georgetown Law Professor Marty Lederman to break down the administration’s flimsy legal case for the regime-change operation in Venezuela, as well as the Court’s shadow docket ruling on the federalization and deployment of the National Guard in Chicago. Finally, some news: the horrific murder of Renee Good in Minneapolis, the Court’s opinion in an important habeas case, and an unhinged tweet from Trump’s Assistant Attorney General for Civil Rights.

Favorite things:

 

• Leah: Jan Crawford’s attack on SCOTUS “corruption” narrative was its own substantive-free narrative, Chris Geidner (Law Dork); The Year America Broke Open, Sherrilyn Ifill (Sherrilyn’s Newsletter); State v. Johnson (Wyoming Supreme Court); Heated Rivalry by Rachel Reid and on HBO Max (Game Changers series); Rally for America’s Workforce: PAWA to the People on  Wednesday, 1/14/26 at 12:00pm at Upper Senate Park in DC
• Kate: Audition, Katie Kitamura; A Marriage at Sea: A True Story of Love, Obsession, and Shipwreck, Sophie Elmhirst; The Wager: A Tale of Shipwreck, Mutiny and Murder, David Grann; The Power Broker: Robert Moses and the Fall of New York, Robert Caro; FOTP Steve Vladeck’s Senate Judiciary Committee testimony
• Melissa: The Heir Apparent, Rebecca Armitage; Tomorrow and Tomorrow and Tomorrow, Gabrielle Zevin; Ziwe’s interview with Vince Staples

TRANSCRIPT

Leah Litman [AD]

 

Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when a man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

 

Leah Litman Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts. I’m Leah Litman.

 

Kate Shaw I’m Kate Shaw.

 

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

 

Kate Shaw So stay tuned for that, but first, case previews. So the court has some major cases on its docket for its January sitting, and we’re going to focus today on three of those. One is a pair of cases, West Virginia v. BPJ and Little v. Hecox, that are being argued on the same day. Both are challenges to state laws that forbid transgender girls and women from playing on girls and woman’s sports teams in public schools, which means that they functionally bar trans girls and women from playing school sports. Another major case the court will hear is Trump vs. Cook, that’s the case about whether the Supreme Court will allow Donald Trump to fire members of the Federal Reserve Board on manufactured and preposterous grounds that supposedly constitute cause for firing. And the third case we’ll preview today is Wolford vs. Lopez, a Second Amendment case, this one a challenge to a Hawaii measure that presumptively prohibits concealed carry, that is carrying concealed weapons. On property that is open to public access unless the property owner affirmatively gives permission for that open carry to happen.

 

Leah Litman So let’s start with West Virginia versus BPJ and Little versus Hecox. These cases are about whether either the equal protection clause of the Constitution or Title IX, the federal law preventing sex discrimination in educational programs, prevents states from requiring trans girls and women to play on male sports teams. As a reminder, Justice Barrett completely gratuitously offered her view of at least the equal protection question in United States scrimmety last term. In scrimmety, the court upheld against a constitutional challenge, a ban on gender-affirming care for trans minors. The chief justice’s majority insisted the law did not discriminate based on sex or gender identity, but merely regulated a medical procedure and medical treatment for minors, even though the law said the word sex over and over and over, and the law banned treatment sought to address gender dysphoria, a condition that is bound up with gender identity and what it means to be transgender and differentiates people based on their sex assigned at birth, but whatever. Justice Barrett wrote a separate concurrence in which she weighed in to say that even if the law did discriminate on the basis of gender identity against trans people, she would be fine with it. That would be constitutional too. And we all know where Sam Alito stands on this based on his separate writing in the case, plus him just being Sam Alito. As would Clarence Thomas, the world’s latest medical expert on gender dysphoria, who, of course, wrote in scrimmety to criticize all of those people masquerading as experts on gender us for you.

 

Kate Shaw So Scrimetti, as Leah mentioned, was a constitutional equal protection case, and the court there concluded that the Tennessee law that banned gender affirming care for trans kids did not discriminate, as Lee was saying, on the basis of sex, and because of that, the law was subject to only rational basis review, which the court found the law easily satisfied. Here, West Virginia, which is one of the defendants, actually seems to concede that the law does draw a distinction on the bases of sex. I mean, I’m not sure how it couldn’t, but I guess… More outlandish claims have been made, so credit for conceding the obvious. But nevertheless, you know, and it says the law does distinguish on the basis of sex, but not gender identity. But after conceded that the law discriminates or distinguishes on the bases of sex. The state concedes that intermediate scrutiny would apply, which is generally speaking under Supreme Court doctrine, the way that laws that draw distinctions on the base of get reviewed.

 

Melissa Murray For now.

 

Kate Shaw I did set you up for that.

 

Melissa Murray For now. I don’t know. Anything could happen in this case. But let me just sort of lay out where West Virginia is. West Virginia says that it easily satisfies the requirements for intermediate scrutiny. And to be very clear, it is arguing that the intermediate scrutiny standard allows states to discriminate on the basis of sex when the sex-based classification is substantially related to an important governmental interest. And here, West Virginia argues that it an important governmental interest in quote ensuring fair and safe athletic opportunities for women. It also argues that the Fourth Circuit ratcheted up the requirements for intermediate scrutiny when that court heard this case on appeal from the district court. So, West Virginia knows the true meaning of intermediate scrutiny. The judges of the Fourth circuit, not so much. Now, in making the case that it has discriminated on the basis of sex, but only in order to preserve fair and safe, athletic opportunities for Women. West Virginia maintains that, quote, biological males outperform biological females in athletic competitions. It then goes on to say that, quote, acknowledging this difference isn’t a stereotype or an over-broad generalization about the differences between men and women. Instead, it merely, quote reflects biological reality. This is all to say that the briefs on behalf of the state in these cases are overflowing with biology. In addition to what I think is pretty explicit protectionism logic that seems to harken back not to the current or extant sex equality jurisprudence that this court has offered since 1973 and forward, but rather goes back all the way to, I don’t know, Mueller versus Oregon in 1908 when the Supreme Court essentially blessed sex differentiated laws on the view that it was necessary to protect women from everything. And Again, because there are no new ideas, we should note that this kind of protectionist logic that used to be in vogue in 1908 is now coming back in the form of a series of executive orders that this administration has promulgated that essentially repackage this protectionist logic for a modern day audience. And in case you think I’m just spouting here, I am. But I’m spouting from a paper that Kate and I recently wrote, and that will be forthcoming in the Supreme Court review. It’s called Skirmedy and the Looming Sex Equality Realignment, or the coming. Is it coming or looming? I don’t know. I think either way, it’s on the way. It is.

 

Kate Shaw Maybe we should call it looming. It sounds more ominous. It does. It is. Okay. All right. We’ll think about that. Both the shift.

 

Leah Litman Both the shift and the paper. It also calls to my and Laura Loomer’s RV in your pants, which, you know, is related to biology, so.

 

Kate Shaw I don’t want anyone, I don’t want to call that to mind for anyone, Lea, so maybe now we should just…

 

Leah Litman Looming Loomers misaligned.

 

Melissa Murray 9 minutes, all of it. Oh no!

 

Kate Shaw No, no, no. Alright, alright. Arby’s in your pants. Focus, people.

 

Melissa Murray I’ll take a scrimmage.

 

Kate Shaw Okay, that will be the sequel, but back to the cases pending before the court. So Melissa was just walking through the equal protection argument, and we should also say that just in the constitutional register, the plaintiffs also make a separate argument that discrimination on the basis of gender identity or transgender status also draws heightened scrutiny in addition to the laws at issue representing sex classifications that already under existing doctrine warrant heightened scrutiny. That’s the sort of the constitutional aspect of the case is an important and distinct question, at least in BPJ, is whether these laws may violate Title IX, the Prohibition on Sex Discrimination in Education. So in the court’s 2020 decision in Bostock vs. Clayton County, the court said, listeners will probably recall, that Title VII, the prohibition on sex discrimination in employment, did prohibit discrimination on the basis of gender identity. That was in addition to sexual orientation, although that’s not at issue here. Now, the two laws, Title VII at issue in Bostock, Title IX at issue here, are not worded identically. Title IX says, quote, no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance. Title VII, by contrast, says it is, quote unlawful, quote for an employer to fail or refuse to hire or to discharge any individual. Or otherwise discriminate against any individual because of such individuals’ sex in addition to other characteristics.

 

Melissa Murray So this is all to say that these two laws are not identically worded, but the key phrases on the basis of sex in Title IX and because of sex, in Title VII, are pretty close, right? So a key question in this case is, what is a majority of this court going to do about its Title VII decision in Bostock, which it basically disregarded in its disposition of dramatic. Now, of course, Skirmody was a constitutional case, and these cases raise both statutory and constitutional issues. But that just means that the court can’t simply ignore Bostock here. It will have to decide what it’s going to do about Bostok as a relevant precedent, at least in the context of Title IX. Now, Justice Gorsuch authored Bostoke, and the Chief Justice actually joined that opinion alongside the court’s Democratic appointees. If Bostock controls, then the Athletes in these cases could win on statutory grounds. But the court could also decide that there are enough textual differences between Title IX and Title VII that they don’t actually line up and Bostock isn’t relevant. Or it could focus on the distinctions between the employment context on the one hand and the educational or athletic context on the other and read Bostok out of the equation entirely for that reason. Listeners, you should also remember that in the oral argument in Skirmety. Justice Gorsuch, who ordinarily loves to weigh in on everything, was uncharacteristically silent. So all eyes, I think, again, will be on him and what he has to say about his decision in this context. So it sounds from BPJ’s.

 

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

 

Kate Shaw I really was struck by how kind of front and center that alleged kind of litigation misconduct was in the BPJ brief, so I am very curious whether it’s actually going to be surfaced in the oral argument. But sort of in addition to that, which is kind of ancillary to the substantive legal questions in the case, there are some genuine jurisdictional wrinkles here. So Lindsay Hecox, who is one of the challengers, actually sought to voluntarily dismiss her claims with prejudice against the defendants in the district court. That could mean her case is moot although So far, the courts have not granted her request to dismiss her case. Now, why did she voluntarily seek to dismiss her claims? Well, she tried out for her college’s NCAA cross-country and track teams, but she actually didn’t make either team. So she just participated in club soccer. But she also noted that her decision to voluntarily dismiss was prompted in part by personal challenges, including those arising from the public scrutiny that she has faced in this case. She is concerned about her ability to finish school and graduate amidst all the public interest in the case. And so she decided to permanently withdraw and refrain from playing any women’s sports. If you’re a parent and you have kids who play sports, that is just so heartbreaking. Or if you’re somebody who has played a sport, this is pretty central to growth development, socialization, all kinds of life skill development for so many people. Emotional well-being, mental well- being, physical well-beeing. So. Yeah, the list goes on, so that is pretty devastating. And the court has deferred this question of whether to dismiss the case as moot, but I think it’s at least possible that it will take that off-ramp, at least with respect to the Hecox case.

 

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

 

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

 

Melissa Murray Remember, it’s the anti anti-discrimination law. We’ve got to worry about it too.

 

Kate Shaw This is that you’ve come a long way, baby.

 

Melissa Murray All right, so big case to watch for. Another case that the court will hear this week is Walford versus Lopez. And it is a Second Amendment case. Get ready, amosexuals. It’s time. Pew, pew, pew. OK.

 

Leah Litman If you’re not watching this on YouTube, you’re missing out.

 

Melissa Murray Listeners, as you know, in 2022, the Supreme Court radically refashioned the Second Amendment with its decision in New York State Rifle and Pistol Association versus Bruin. There, the court held that gun control measures infringing on the Second amendment are legal only if the government can show they were consistent with this nation’s tradition of firearm regulation, which the court seemed to suggest meant something like. The state can only pass gun safety laws if they can also show that there had been some significant number of substantially similar gun control measures at the time the Second Amendment or maybe the 14th Amendment were ratified. So in order to survive court scrutiny, gun control measures of today have to be pretty analogous to gun control measures from 1787 and 1868. So That’s a pretty nutty test. I’m just going to riff on that for a minute. Contemporary firearms look really different from the ones that they might have had in ye olden days, in the 1700s and the 1800s. Society also looks very different. I have a job as a law professor. I’m not picking cotton or anything. So perhaps it’s not a surprise that gun control measures governing a vastly different society with different guns might be very different from gun safety regulations. That states might promulgate today.

 

Kate Shaw Sort of surprisingly, the Supreme Court, relatively quick on the heels of Bruin, seems to have a bit come around to the logic that Melissa was just sketching, which is it sort of seems to have realized that the test that it announced in Bruin was actually pretty insane. And it got cold feet when it came to actually applying that test and sort of sought to either roll it back or modify it somewhat in its decision in United States versus So, in Rahimi, the court upheld a federal law prohibiting firearm possession. By persons subject to certain sorts of domestic violence restraining orders, even though, believe it or not, there wasn’t much law prohibiting domestic abusers from having guns at the time the Second or Fourteenth Amendments were ratified, possibly because women didn’t have a voice in politics or anything else. But despite all that, which I think on the Bruin Test’s own terms should have doomed this federal law, it survived. So, the court again. Walk to some degree Bruin back although how much that case was a one-off and how much it was a real change to the Bruin test I think very much remains to be seen.

 

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

 

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

 

Melissa Murray So again, I don’t want to keep harping on the ammosexuality here, but I think it is really relevant. And I’m really interested to see how this plays out in oral argument. So I want to propose for all the striptease out there in the podcasting universe, I think we should play a little drinking game during oral argument, every time an advocate or one of the justices invokes racial justice as a reason to extend or expand the Second Amendment and give everyone a gun? I want you to take a drink. Every time. My tolerance is not that high. The limit does not exist. Right. All right. I won’t even, I had others that you could drink, but like maybe we’ll just leave it with Rachel. That one would do me in. Okay. Well, according to Leah, you will be sauced by noon. So clear your calendars.

 

Kate Shaw Don’t these arguments start at 7 on the on the West Coast? This could be an early day.

 

Melissa Murray Oh, our West Coast striptease! That’s when you then get online and buy your tickets for the Herbst Theater or the Palace Theater for our live show.

 

Kate Shaw God, you are good, Melissa. So good. Okay, but back to Hawaii, so obviously they love expanding gun rights, but this I think even for them is going to present a challenge. So one, if they sided with the kind of second amendment absolutism here, they would be invalidating a default rule. The Hawaii law is not a prohibition. It simply establishes a presumption that the property owner ultimately decides whether to override. So there’s a default role always in the law. It has to be somewhere, and- they would be announcing that the state cannot reflect a different set of policy preferences about where to locate a default rule in the context of private property where guns enter the equation. So that, I think, is going to be a challenge for them. And I also do think there is some genuine cross-pressuring in that, as enthusiastic as they are about the Second Amendment, they are ostensibly also pretty protective of private property. And so to suggest that we want to remove from property owners the ability to actually decide. If they want to allow or disallow people to open carry on their property against a default that the property owners have to take some action in order to allow it would be a pretty aggressive anti-private property move, I think, unless you think private property rights only get respected where they align with expansive Second Amendment rights, which might be how they square this circle.

 

Melissa Murray I’m going to watch to see how the conservatives basically rip themselves apart, just like tie themselves in knots, trying to figure out this little conundrum. I mean, we saw how difficult it was.

 

Leah Litman For them to criticize Justice Scalia and try to do law, it’s really hard for them walk and chew gum.

 

Melissa Murray Well, speaking of things that conservatives typically favor, let’s also talk about the federalism here that may be falling by the wayside as well. Again, Hawaii has made a pretty express preference here for this presumptive rule. As Kate says, it’s just a default. It’s not a prohibition. And in a related case, Hawaii versus Wilson, the Hawaii Supreme Court upheld the state’s May issue concealed carry permitting regime, asserting that, quote, the spirit of aloha and unique state traditions overrode any Second Amendment mandates here. That case was appealed to the Supreme Court. The court denied certiorari there. But obviously, the same issue persists. And I think we’re going to hear a lot about the spirit alohas and federalism in this case. And we’re to find out if ammosexuality or the spirit of aloha will prevail. One or the other cannot be.

 

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

 

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

 

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

 

Leah Litman So basically all agencies and commissions, except the court maintained the Federal Reserve Board in a cursory. What’s that I hear? Right. Is it the sound of invoices?

 

Melissa Murray Accounts? Increasing? I’m sorry, what’s going on?

 

Kate Shaw Like a ching ching, should we like have a cash register sound effect?

 

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

 

Melissa Murray Eventually, the court said, Drakaris, fire all of them, except the governors of the Federal Reserve Board, because the economy and 401Ks. And so Donald Trump, Donald the Dove, who always follows what the court says, decided to go ahead and fire a governor of the federal reserve board. But, to be very clear, he said he had cause to do so. He purported to fire Governor Lisa Cook, the first Black woman appointed to the Fed, on the grounds generated by Bill Poulty that she had engaged in mortgage fraud. The claim is that Cook misrepresented that homes she had purchased would be her primary residence when, in fact, they would not be. And I think they were referring specifically to a property in Atlanta. So this is basically a story of a black woman part of the whole mortgage fraud fraud that this regime has periodically been engaged in. We’ve seen this lodged against Letitia James, for example. That was kind of thrown out and dismissed. And just a reminder, ProPublica has reported that many, many people in the Trump administration have also allegedly represented that homes that they have purchased that they said would be their primary residence are, in fact, not their primary residents. So. I mean, I guess you should focus on the mortgage fraud because you’re doing it.

 

Kate Shaw Those are friends of the president, Melissa, and therefore it’s fine. That’s called law. Or vibes. Right. So on the basis of this alleged mortgage fraud, Trump fired Cook, saying that this conduct constituted cause, and Cook challenged her removal. So a district court found that the removal was illegal and said the Cook could continue to serve as governor. The court reasoned that the statute only allowed the president to fire people for cause that arose after an individual had been confirmed, that is for actions taken while in office. Because these alleged misrepresentations that Poulty has allegedly unearthed were made before becoming a Fed governor, that did not qualify as cause. The court also concluded that Cook’s firing did not comport with the constitutional requirements for the process that is owed before a removal like this occurs. She was not provided with notice or an opportunity to challenge or dispute the allegations against her.

 

Leah Litman The government, as it is wont to do, rushed off to daddy SCOTUS and asked the court to stay the order blocking Cook’s removal. The Supreme Court declined to act on the application. That is, it didn’t make a decision one way or another and instead schedule the application for oral argument. So in this case, the court is technically hearing argument on whether to grant the government a stay. This is the same posture as the birthright citizenship matter the court decided last year. It was on the government’s application to stay the injunctions because the government said the lower court didn’t have authority to issue nationwide injunctions. The stakes of Cook’s case should be clear. If the president can just trump up and invent cause, then he’s not actually limited in his ability to fire members of the Fed because he can just insist there is cause. And if he gets to decide what cause is and courts aren’t going to subject that to meaningful scrutiny, there goes the independence of the fed. That sound you hear in addition to investment accounts kaching is the possible collapse of the global economic order and 1929 making a comeback, by which I mean the Great Depression.

 

Kate Shaw And actually, even the chamber of commerce seems to get this. So although the chamber technically submitted a brief in support of neither party, the brief does take the position that courts can review whether a president has cause and also takes the position that Congress has the authority to insulate monetary policy from the president. So just a couple of other quick observations before we leave this case. So first, this is Trump picking a totally unnecessary. Fight, which I guess like means it’s a Friday. But I mean, he has lots of other ways to influence the Fed. Every president does. Fed independence is a construct and it’s real, but it is far from absolute. So he is already very empowered to influence the direction of the Fed and monetary policy without firing people without any kind of precedent and on these manufactured bases. So so that I think is is kind of one reason this is a completely manufactured, an unnecessary fight that he’s picking. And two. He already has other so Powell is gone in May anyway as chair. He’s got a couple more years on his term. There’s at least one other vacancy coming up. Some people leave early. Like he is already reshaping the actual personnel on the Fed. This does feel like this is about Trump both wanting to take it to the one black woman on the fed and also trying to invite SCOTUS to confirm his claim made to the Times this week that the only limits on the president’s power are those that emanate from his own morality. So, we’ll see what the court does. And let me just maybe say one more thing, which is that it may be that we learn something about the meaning, so far really un-elaborated by courts, of cause in statutes, right, if we’re talking about these removal protections. But I also think that there are ways for Trump to lose this case that aren’t about the court deciding that, you know, it’s gonna define cause and find that this didn’t constitute cause. And, I mean, I think the most obvious way is just to find that she was denied some constitutionally adequate procedures. And it might not even say what those procedures were, but that they weren’t satisfied here. So I do think there are some off-ramps here that will allow the court to kind of avoid an ultimate confrontation with the president and his motives, but, you know, maybe preserve a degree of independence for the Fed.

 

Melissa Murray So this case is basically going to force the court to determine who it likes more. Do they like Donald Trump more than they like their emotional support billionaires? Do they like Donald trump more than their own legitimacy? Is this going to be basically reprisal of the tariffs argument in the tariffs case where Not only was the court faced with the same cross pressures, they also were in a position to burnish their own laurels and look a little bit independent after giving this administration so many wins, so many disastrous wins. And this could be another one of those situations where they support their emotional support billionaires and the economy and in the process deal this administration a loss while burnishing their own legacy. So Don’t take the bait, folks. Still the same court, even if they occasionally say no to this president. Anyway, just as a quick FYI, the court is also going to hear some other cases in January. So let’s tick through them. One is Chevron USA versus Placaminis Parish, Louisiana. And I did look that up, so don’t jump in these mentions. So no, SCOTUS is not considering whether to bring back Chevron deference. This case is about whether a case involves a federal officer such that a case filed against the individual or entity who is supposedly a federal office can then be removed to federal court if it was first filed in state court. This specific case involves a federal contractor involved in oil refining and whether that contractor qualifies as a federal. Professor Percy at Ole Miss has a forthcoming article in the Cardozo Law Review on this issue. The article is titled Chevron USA, Inc. Versus Plaquemines Parish. Did the Removal Clarification Act of 2011 abrogate the causal nexus requirement for removal pursuant to 28 USC section 1442, the federal officer’s removal statute?

 

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

 

Leah Litman [AD].

 

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

 

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

 

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

 

Marty Lederman Thanks, it’s a real privilege and honor. Thrilled to be with you guys.

 

Kate Shaw Well, we’re super excited to have you, and as Leah mentioned, we are definitely going to talk about the National Guard. But we do want to start by covering Venezuela for a few minutes. And we should say, we don’t yet know the full claimed legal basis the administration is offering or will offer. They haven’t told us. But it does seem that the administration may be relying in part on a 1989 memo from the first Bush administration’s office of legal counsel. That sought to provide a legal basis for the first Bush administration’s entry into Panama and the arrest, rendition, and prosecution of General Manuel Noriega. The memo was written by, wait for it, Bill Barr, then head of OLC, he would of course go on to serve as Attorney General under both the first bush administration and the first Trump administration. Just as an aside, it really is amazing how few new villains and new ideas are there. It is just a lot of the same recycled dramatist persona and schlock.

 

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

 

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

 

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

 

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

 

Marty Lederman So in 1989, I’m not going to get into the details about the statutory interpretation, but the thought that the FBI’s statutory authorities could govern this famously held that the president is not bound by customary international law. There’s a long-standing debate about that question. But what about a treaty of the United States, which is just clearly the supreme law of the land, and these FBI snatches would breach the charter, put the U.N. And the United States in breach of. Of a valid treaty obligation. And Barr concluded in very cursory fashion that because Article 2.4 of the treaty is in some respects what people have called non-self-executing, which has traditionally mostly meant that it’s not enforceable in court, it doesn’t create legally enforceable rights of individuals that they can go to court to challenge, that therefore as matter of U.S. Domestic law. It doesn’t bind the president, right? The United States is bound to enforce it as a whole, but the political branches are both free to disregard it as matter of the Constitution.

 

Leah Litman I didn’t realize this supremacy clause said except for the president or Congress and who’s bound by federal law, but

 

Marty Lederman So they would say it’s binding, but the theory, and this is why it’s a little bit confusing, Leah, is the theory was that the treaty itself or, and, this is vague in the opinion, or the ratification of the treaty by the President and the Senate did not, it’s binding, it doesn’t create binding law itself. Imagine a treaty provision that is merely aspirational, that doesn’t impose a… An absolute requirement. There it’s easy to see, right? We’re just required to do what we can to secure certain objectives. Well, that doesn’t create any binding government. But here it’s just a prohibition. Thou shalt not use force against the territorial integrity of another state, full stop. And that clearly, it seems to me, was a mistake. But It’s one that I think has taken hold.

 

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

 

Marty Lederman So that’s a really rich and difficult question, Melissa. OLC, like courts, is very reluctant to overrule its precedents, and it has an internal stare decisis doctrine. How novel. It’s not very well established, and there aren’t having, until recent years, there weren’t a lot of cases where the issue really came up, like what the standards are for overruling an opinion. I don’t know that anyone in the executive branch has ever asked OLC. To revisit the conclusions of the bar memorandum. And that’s one of the problems. OLC is a reactive entity and if no one’s asking, it won’t revisit it.

 

Leah Litman Consider this my official request, OLC, to revisit the bar member.

 

Marty Lederman Yes, OLC does not give legal advice to Congress or to members of the public, but only within But what about podcasters?

 

Leah Litman This executive branch is just a bunch of podcasters.

 

Melissa Murray It’s a bunch of podcasters, so it seems like it should work. But not lady podcaster, so there you are.

 

Marty Lederman Yes. Well, there’s a classified memorandum about the podcasters, but I’m not really permitted to talk about that one. Harmeet Dhillon commissioned it.

 

Leah Litman After calling them hoes, so sorry, Marty.

 

Marty Lederman So, in recent years, it’s happened a lot. And in fact, the Trump administration, both in the Trump first term and in this last year, their OLC is just overruling former OLC opinions left and right. And I don’t mean to mean that absolutely as a criticism, although I disagree with the substance of many of those opinions. It does happen. I’ve written and signed and certainly worked on opinions where we’ve overruled. Things, that some of the torture opinions have been formally withdrawn, you know, that you don’t need to overrule them if you’re just saying they don’t represent the law. And I doubt that’s happened here. And maybe it’s because it’s not clear to me that the bar memorandum has had to been used in the last 30 plus years, right? It’s not like it’s been invoked left, right, and sideways all the time. There are hard questions about authorities involving the central government. Intelligence agency, but those get into a bunch of different statutory questions and what Congress has authorized in terms of covert action and the like.

 

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

 

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

 

Melissa Murray So this is basically a Franken memo of like all the use of force in every memo that possibly would allow it cobbled together to make some kind of use of force monster that now will justify these actions in Venezuela and possible actions in Cuba and Colombia. Does anyone know how, did anyone read Frankenstein? Did anyone? No, I’ve heard Jacob Elordi is actually quite good.

 

Marty Lederman So it’s partly that. In fairness, there’s a bunch of memoranda about the use of the military and when the president can act without congressional authorization. And then other cases such as the U.S.’s engagement in an air campaign in Kosovo and the Clinton administration and the first Trump administration’s attack on Syria to get rid of its chemical weapons. That have been very far-reaching that I think are very questionable, in part because they are such clear breaches of the UN Charter. So there’s been an accretion of cases, any one of which might be justifiable on its own terms, but when you bring them all together, they sort of create the parade of horribles, the hypo that a good internal executive branch were supposed to raise. At the time. Like, if we approve this, do you know that it would mean if we just wrote it that way, you’d be able to just conquer Greenland at no cost, and that’s absurd, and so that can’t be right.

 

Kate Shaw Right, but here this is, maybe this is a feature, not a bug, that their justification actually will authorize. They absolutely think this is… They think this a feature.

 

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

 

Kate Shaw And I think that shifting, not from just talking about the kind of legal justifications such as they are for the original apprehension, but what has happened since and what we might be facing coming down the pike. I mean, we are already hearing the president seeming to use the invasion and occupation to justify other kinds of pretty gross defiance of the constitutional system. So we’re hearing reports of seizure of an oil tanker headed for Russia, plans to put the money from the oil in offshore accounts that the president will apparently be in control of. I mean, absolute lunacy, allowing the president, like in plain view, to create a separate funding stream by seizing tankers and engaging in essentially mob-style governance to evade the constitutional limits on the president’s authority is really what we are talking about. There’s also the president announcement via truth social. That the interim authorities in Venezuela are turning over tens of millions of barrels of oil that would be sold. And again, those proceeds would be controlled by the president personally. I guess, I don’t know, Marty, question mark, like whatever justifications you are stretching to understand with respect to the original ostensible law enforcement operation conducted by the military, none of that, I gather, comes close to justifying anything that we have heard about since, or might be facing coming down the pike. Is that basically right?

 

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

 

Leah Litman Oh, this just in on that. This just in from JD Vance. Let’s play his hot take.

 

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

 

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

 

Marty Lederman I think the two things that strike me as sort of the Frankenstein, as Melissa put it, together. There’s several different strands, but the two important ones are, one, everyone agrees and the Trump administration does not disagree that this breaches the UN Charter. And what was really striking was the US’s presentation in the Security Council the other day, there was not the slightest effort at making a legal justification for this. I mean, the most shocking thing about it is what was not said, which was— The whole meeting is about the US has probably breached the Charter, and the UN representative from the United States said not a word about it. But the main thing that I wanted to focus on is what is the affirmative authority for this? It’s hard to point to restrictions in the Constitution or in a statute or apart from the Charters in a treaty that prevents all this from happening. They are being very, very aggressive about finding so-called inherent authority. To do virtually anything the president wants once Congress has given the president armed forces, right? Like to do anything around the world. And I think that’s really the larger problem is this idea that until Congress passes a statute to restrict what you’re doing, you can do anything you want with the armed forces.

 

Kate Shaw All right. So let’s leave it there and turn now to the court’s big shadow docket decision in the National Guard case, Trump versus Illinois, which was announced on December 23rd, kind of a lump of coal in the administration’s stocking just before Christmas. Although, you know, knowing how much this administration loves coal, I was thinking maybe we need a new metaphor. Maybe it was a wind turbine in their stocking. But, um, but also as we’ll talk about, obviously, this is maybe somewhat more solar panel. I thought A little mini one. A mini podcaster. In their stocking, the most fearsome, much scarier than any of the renewables. In any event, what we were talking about, dear listeners, is the Supreme Court, by a vote of six to three on the eve of Christmas Eve, denied the government’s request to stay a lower court order that had blocked the president’s federalization and deployment of the National Guard in Chicago. Although this happened in the Chicago case, it seems quite clear that the court’s reasoning applies to the federalization of the deployment of National Guard elsewhere, so that’s. Portland, Los Angeles, Memphis, and anywhere else the president might decide to turn his attention.

 

Leah Litman And the court adopted the argument advanced by now official mensch of the pod, Marty Liederman. So under the relevant statute 12406, the president can only federalize the guard in three situations, including where, quote, regular forces are insufficient to execute United State’s laws.

 

Melissa Murray So the administration maintains that in referencing, quote, regular forces, the statute contemplated federal law enforcement officials like DHS officials and ICE officials. But according to Marty Lederman, that interpretation is actually incorrect. As Marty argued in an amicus brief, the statue actually contemplates an entirely different meaning for the term regular forces. According to Marty, the statute contemplates… Regular forces to mean the US military or the US armed forces. Accordingly, unless the military itself is unable to enforce federal law, which presumes that the military is able lawfully to enforce Federal law, a big question, then there would be no basis for the president to federalize the Guard over the objections of the Guard’s state governors. So Marty, what prompted you to start digging into this particular question about the meaning of these statutory terms? And how did you come to the conclusion that the statute in referencing regular forces meant to reference the US military?

 

Marty Lederman So the true story is back in June, I guess, when the president first used the National Guard in Los Angeles, they invoked this statute. From my time in OLC and my time as a scholar, I’ve done a little bit of work on the insurrection acts, which are the ones that are usually used by a president to bring in, to call into force either the National Guard, the militia, or the regular forces, the ordinary Army in various contexts throughout our national history. I wanna pause to say, and then we can come back to this, that in the vast majority of those cases, it’s at the invitation of the state. The state is unable to quell violence that has arisen and the governor asks the president for help as in the Rodney King case or the Detroit riot in 1967, which I remember vividly, I was there as a young boy. There are very, very few cases in which the president has used military forces on domestic soil. Against the wishes of the local authorities and the governor. The famous times are 1957 in Little Rock, 1964 in Alabama, where the governors were basically in cahoots with the persons committing private violence and were resisting the application of federal law. So here they pull out this statute I’d never heard of, 12406, and no one had really ever considered, It had never been used. Before really as a standalone, as a justification for a deployment of the military, let alone in these circumstances. And I found that very strange. Why weren’t they invoking the Insurrection Act or a so-called constitutional protective power, which has sometimes been invoked, but very rarely? Why did they turn to the statute no one’s ever heard of? And I looked at the statute, and it’s enacted for the first time in 1903. It’s called the Dick because Representative Dick was the principal sponsor. Then this language was amended and added in 1908. I’m like, wait a minute. There were no ICE forces in 1907. That can’t be what Congress had in mind. And maybe it’s just the OLC lawyer in me. But the first question I would always ask is, what is this statute about? What was Congress doing? Why isn’t anyone talking about where this statute came from, how it’s been used in the past, it uses a phrase that’s very unusual. First of all, that the president be unable with the regular forces to implement, to execute federal law. That doesn’t appear in any of the other statutes. Where did that come from? What did they mean by unable? What do they mean the regular force is? And I asked some friends, friends of ours, friends of the pod, who have also done some work on Insurrection Act history, like what do you guys know about this? So I thought… Okay, this is a great answer to the question that students are always asking us, do you have a topic that I can write a paper on? Right? It’s like, yeah, go figure out what this 1908 statute meant. This is great. And I just kind of let it sit. And in the subsequent months, all the parties, the federal government and the state governments and all their amici and all of these federal judges in California and in Oregon and in Illinois, going, first of all, they all come up with a test for what it means to be unable to execute federal law that the Ninth Circuit comes up with. It’s a very reasonable test, but it’s kind of pulled out of thin air, which is like significant impediment on your ability to enforce the law. And then they apply it to, in excruciating detail, to the facts on the ground in Portland, in LA, in Chicago, and decide whether President Trump was reasonably decided that he couldn’t enforce the law. Was unable to, that there was significant impediments in these cities. And the judges in the lower courts were understandably very, very dubious about the president’s determination there because this seemed like the ordinary violence one gets with protests all the time without bringing in the military, any form of the military. And so finally, the SG applies in whatever month it was. Late September, October, applies for a stay in the Supreme Court, and still no one’s dealing with this except the district court judge in Chicago, to her credit. She at least did a couple of paragraphs on it. And I’m like, oh, this is crazy. They’re just, they’re asking the court to resolve questions that don’t really, as far as I can tell, are not what the statute is about. And, and this is the important point, I think you guys would probably all agree, these are questions that I’m sure most of the justices we’re not eager to answer. Both the legal question of what does Congress mean by unable to, it’s kind of a hard question, and also about how rigorous should the judiciary be at second-guessing a presidential determination that a statutory standard has met. A deep question that’s at issue in the Enemy Aliens Act, in the Tariff Act cases, in the Lisa Cook case, in all of these cases, the justices hardly want to say, we’re gonna say that Donald Trump’s determinations are unreasonable. They also don’t want to rubber stamp those determinations because most people agree that they’re pretextual and that they’re, you know, like the lower courts did here. So I don’t think they relished this application from the SG. I’m sure they were looking for what? For an off-ramp. Yeah, and you gave them an off ramp. And it turns out there was a good one. So it was a combination of those two things. It was it was a case in which. The justices were amenable to an off-ramp, to a different statutory interpretation, and it turns out just fortuitously that that was clearly the right interpretation, which And by the way, you know, I’d like to take credit for this, but I think if any lawyer had dug down, you would have figured out quite quickly that this was the correct interpretation, and notably none of the justices takes issue with it.

 

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

 

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

 

Marty Lederman So I’m a bit of an obsessive, and we love that, you know, that old cartoon about like, come to bed, it’s three o’clock, I can’t, there’s someone saying something wrong on the internet. Okay, well, there was a lot of people saying something wrong in the Supreme Court. And Justice Barrett gave the parties three days to file briefs in response to the.

 

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

 

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

 

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

 

Marty Lederman So, technically, I could have waited longer, but I wanted to be fair to the Solicitor General actually and allow them to respond to this argument in their reply brief if there were to be any. And so I wanted it done so that the order goes out on a Friday afternoon and I got the briefing on a Tuesday afternoon, three days, I think that’s three days or so, four days later, after pulling a couple of all-nighters, got it in, and then… Shot, you know, was very, very surprised when I don’t know how many days later, 10 or 12 days later the court asked the parties to address the question I had raised without mentioning my brief, which is fine. And then the court allowed me to file a supplemental brief, actually, at the same time that other amikis were filing the brief also. So I did that. So I ended up filing two briefs on the questions, not only on this statutory question, but also sort of on the follow-on questions about the Insurrection Act. Which you guys mentioned and the court did say something about. So that’s basically it. It was just an exercise in pushing the boulder up the hill, and maybe Sisyphus gets to the top of the hill once every 30 years without the boulders crushing. I hope it doesn’t take that long again, but that’s the basic story. You know, if you’d have given me a month, maybe it would have been a better breeze.

 

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

 

Kate Shaw There are a whole bunch of reasons for that prohibition on the military engaging in ordinary domestic law enforcement. Military forces are not trained the same way domestic law is trained, they are trained for war, not patrolling the streets, and more to the historical point, the framers were really concerned with the prospect of a standing army running roughshod over the rights of citizens, and that fear is reflected, I would say, both in the Constitution and in federal law. But as Melissa alluded to, the Insurrection Act is an exception to the general prohibition on military doing law enforcement. In circumstances of an insurrection against the federal government, the president is authorized to deploy the federal military if the requirements of the Insurrection Act are satisfied, whether those are reviewable by court, separate question. But so, Marty, I guess, do you think the administration is now likely to invoke the Insurrection act in light of having this door closed if it wants to, you know, use forces to enforce federal law?

 

Marty Lederman Your guess is as good as mine, Kate. I mean, I do think this was the concern. This may have been one of the reasons the states were not making the argument that I was making. They were afraid that the Trump administration would just turn around and invoke the Instruction Act and send in the regular military. And I do wanna, we can maybe circle back to it in light of the tragic events yesterday in Minneapolis and Renee Good’s killing. Circle back to the question of these statutes and the constitutional tradition that you refer to. Almost turned on their head, right? I mean, I think most Americans would agree that a militarized ICE or local law enforcement are in some ways much more dangerous, maybe as a practical matter, than the trained military forces who would not use lethal force nearly as quickly and without, you know, without any standards as those forces are. So there’s a certain irony here. But yeah, in my first brief, I urged the court not to address the Insurrection Act questions. And the executive branch has historically construed those laws not to apply in cases like this. But the language of those laws is very broad, just looking at the statutes themselves without regard to the history or the tradition that Deputy Attorney General Nick Hatzenbach wrote about in 1964. So I cite this memorandum saying that it should be construed consistent with our constitution and our history of great skepticism about the militarization on US soil for law enforcement purposes, and that should only be used in discrete, limited circumstances, and urged the court to hold that the military, you know, you had to, the National Guard could only be use if the regular military was both legally authorized to act and was unable to address the problem adequately. Interestingly, the court did adopt that second argument of Mark. They did say, they basically took this 12406, this idiosyncratic statute, off the table, which I think is reflected in the fact that the administration’s pulling all the troops from – they were never really deployed or not much deployed in Los Angeles and Portland and Chicago, but they’ve led them back into their state National Guard posture.

 

Leah Litman Well, I was going to ask you, you know, you apparently persuaded the president, Marty, who posted on true social to announce that he would comply with the court’s order and was removing the National Guard from those places. You know, I don’t know if that makes him the pullout president or what, but how does that?

 

Marty Lederman Well, I think he’s just very attuned to what I suggest. Yeah, he was deep in your amicus brief. He’s very responsive to it. No, I think he was told… I think the message from the Supreme Court, the implicit message was enough of this 12406 thing. That’s a dead letter here. Like, either you’re going to say that there’s authority under the Insurrection Act or Article 2 for you to use the military, or not, but that’s what you’re gonna have to do. And that’s a pretty… I was actually heartened by the fact that They basically, someone told the president, don’t go right in and use the military now, in part because it would seem fairly absurd, right? There’s not violence going on in Chicago and Portland and Los Angeles, and it would be the worst posture in which to try to assert those authorities. But he did warn that if things get worse, he might do so. And so that remains, Kate, a prospect for, you know, if there is violence in reaction to immigration authorities, it might be that the insurrection act question— does arise. And I think in the first instance, it won’t be the courts that have to confront that. It’ll be DOJ and DOD, and whether they will comply with this tradition that Deputy Attorney General Katzenbach described in 1964 about the limitations on those authorities.

 

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

 

Marty Lederman It’s my pleasure. Now you’ve given me two possible epitaphs, right? Like, he looked into the interstices, would be one, would be one. And then he was like the podcast mentions.

 

Kate Shaw Mention the pod, actually.

 

Melissa Murray Cast men she looked into the interstitial to find off ramps. Yes, that’s you.

 

Marty Lederman It’s great to be with you guys. It’s a pleasure, anytime.

 

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

 

Leah Litman Melissa, are you OK?

 

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

 

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

 

Melissa Murray Oh stop. Is this a new segment for the new year? Is it time to have our inaugural, we need to talk about this Kev Currence segment? Is that what this is? I think so. I don’t know. I think it’s always been there, Leah. It’s always been there. I know. I’m picking it up in 2026. I’m picking it up.

 

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

 

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

 

Melissa Murray Nothing to do with that.

 

Kate Shaw Was nothing to do with that. He stirred himself. What was the background context? I guess, you’re reaching. Completely unrelated. And yet, he felt the need to say this. And so I pose the question to you too.

 

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

 

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

 

Leah Litman What is he ever trying to do? And not to be kind of nitpicky, but also to be nitpick. As Kate noted when she quoted the footnote, Kavanaugh cited Wren for the proposition that you can’t make stops based on race. And it’s like, my guy. You do know that Wren is the decision that effectively made it impossible to challenge racial profiling because Wren said, so long as the officer has probable cause. Know, the fact that you are alleging you were stopped based on race doesn’t matter. Like, this is a decision that literally is the one associated with what it means to, like, drive while Black. And, like what is it with this guy and bad citations? Because this is not the first time he’s cited a case for, like the exact opposite of what it means. In his opinion, in the USAD case from a few years ago, he announced that, you know, typically foreigners abroad don’t have constitutional rights. And he cited Wait for it, Boumediene versus Bush, the case that held non-citizens detained at Guantanamo Bay, Cuba, have constitutional rights under the suspension clause. You know, I don’t know if his clerks hate him. I don’t know if he can’t read and also his clercs can’t be. It’s just mind-boggling. Strict scrutiny is brought to you by Skims. Okay, here are some of my pain points with bras. It’s winter here, my skin is dry. I cannot handle anything digging into my skin or anything but the most comfortable fabrics. And that’s why I am obsessed with the Skims Fits Everybody collection. Seriously, I don’t think I can recall the last time I was wearing something not in the collection. I sat down to record these and, yep, that is my Fits everybody bralette. The fabrics are stretchy and supportive, but also jersey-like in their softness. They help me feel comfortable from the moment I put them on until I take them off. It doesn’t just matter what you wear on the outside. It’s also your underoos. My personal favorite fits everybody pair is the scoop bralette and the boy short. I don’t even know where to start with why I love them. There’s a fabric, which I’ve already talked about, but the fit is also so comfortable. The bralettes is supportive without digging in. It just feels great. It moves with me. Same with the boy shorts. They don’t make me feel like I’m wearing bulky items or underwear that’s more for sports. You know, it’s not like it is more restrictive. It’s less restrictive, but it’s also supportive. Shop my favorite bras and underwear at skims.com. After you place your order, be sure to let them know we sent you. Select podcast in the survey and be sure to select our show in the dropdown menu that follows.

 

Leah Litman [AD]

 

Melissa Murray Alright folks, so there’s some additional legal news that we wanted to cover. As Marty alluded to when we were talking about the National Guard case, last Wednesday there was another ICE shooting. This time it was a fatal shooting of a civilian, 37-year-old Renee Nicole Good, a wife and the mother of a six-year old. DHS’s initial statement suggested that the officer who shot Good did so because Good was, quote, a terrorist who tried to assault the officer with her vehicle. However, there is contradictory video evidence, and the video suggests that Good may have simply been trying to turn her car around when the officer fired his gun into her car window at point-blank range, shooting her in the face. The New York Times has a slow-motion analysis of the entire incident, and it is worth checking out. I don’t know if you all saw that.

 

Leah Litman But right before we sat down to record, some additional footage was released. And it looks like it’s the footage that the officer who shot Good recorded on his phone. And it captures the last interaction between Good and the officer, in which she is smiling at him and says, I’m not mad at you. And he continues circling around the car. And at the end, you hear someone say, like after the gun is fired. At her head at point blank range fucking bitch and like it could be the officer like it is. Yeah, I am just at a loss. I mean, I moved our discussion of this out of the segment we did with Marty and to here because we actually recorded with Marty yesterday and I was not sure I could keep it together the day we recorded with him. I’m going to try to do so now. But part of what makes us so chilling is the administration’s blatant lies and insults smearing of Renee Goode, who had just been gunned down by one of their goons. Again, there’s video evidence, and they are sticking with the lie. They don’t care. And so it just makes it perfectly clear. They will excuse murdering anyone. It doesn’t matter what the facts or evidence say. They’re just going to blame you. If you’re a woman, a Democrat, you live in a blue state, you are engaged in exercising your constitutional rights, it’s your fault. Some of them have made this basically explicit, saying, well, so long as you obey the ICE officer, you will get to live. And it’s like… There is now this like armed militia that has been unleashed on the country committing human rights violations. This is a woman who went to drop off her kid at school, saw ICE present, and was like talking to them and trying to film it. And I, yeah.

 

Melissa Murray Juliette Kayyem, who used to be in DHS in the Obama administration, had a really great segment on KQED, the National Public Radio affiliate in the San Francisco Bay Area. And one of the things she pointed out that I thought was exactly right and that I hadn’t thought about is the idea that even if you were being non-compliant with law enforcement, that’s kind of what law enforcement is supposed to be prepared to address. Like, most people who… Come into contact, need to be arrested, or whatever, are noncompliant. Like, you’re supposed to be trained to deal with people engaged in noncompliance. And most of the time, dealing with them does not require them to be dead at the end of the interaction. Like, part of your training is about how to diffuse situations, even with noncomplient people, so that they may be restrained, but they’re still alive. And the fact that this There’s so much wrong with the video here. Not just that it ends in her death, but that they don’t render medical assistance to her, even though there is a physician who has identified himself as a physician on site. They walk away. They don’t.

 

Leah Litman They walk away, they don’t provide assistance, they leave the people do so.

 

Melissa Murray They leave the scene, which is like altering an active crime scene when you leave. I mean, there’s just so much wrong here. And then Christine Ohm calls this domestic terrorism and they won’t allow Minnesota to minimally participate in the investigation. Yet we know from 9 11 that one of the failures of 9 11 was the failure of domestic state and local law enforcement to work with the federal government. So going forward, post 9-11. That was standard. If you had quote unquote terrorism, you were supposed to engage, not just the feds, but also state. Also, there’s no such thing as domestic terrorism. That’s not a thing. Well, I mean, but using even using her language, it doesn’t make sense. Like if this was truly terrorism, we’re supposed to work with the state and local officials.

 

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

 

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

 

Kate Shaw But that’s the charitable reading is that they’re just not actually giving them the tools they need to diffuse, but maybe they don’t want them to diffuse. No, 100%. That is the less charitable reading. Well, the posture now is you shoot someone.

 

Leah Litman The posture now is you shoot someone and will say anything to defend you.

 

Kate Shaw Completely anything to defend you and to disparage them. And I have to say I was really struck by what Marty said in that conversation that as terrifying as the prospect of deployment of the actual military to the streets of American cities is The military would not be behaving like this with the population again I’m it’s not something to ask for but I just think that more agree sure about that any I I Think it’s complicated. I mean, I’m just saying that like I just thing ice and CBP and all of these DHS components you know, not recognizably law enforcement. They are acting as this paramilitary force that is just a truly terrifying presence in cities in a way that I think is much scarier than the National Guard. And again, we have not seen the military, and I hope we never do. But it was such an interesting perspective. And I’ve been reflecting on it since we had that conversation. Despite the efforts by the federal government to thwart investigations and involvement by state and local officials, the response from state officials has been swift, so has the public response. So here’s a clip from the mayor of Minneapolis.

 

Clip Two ICE, get the fuck out of Minneapolis.

 

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

 

Clip Why do you think the Trump administration is sort of fixated on Minnesota right now.

 

Clip Well, I wish I knew. I mean, I wish they would just leave us the fuck alone. I mean seriously.

 

Kate Shaw Minneapolis and Minnesota residents have been stepping out to challenge federal law enforcement presence.

 

Clip You’re gonna run someone else over and shoot them! You’re going to shoot someone else and kill them! You’re gunna murder someone else! Come on! Kill us all! You can’t kill us all. You can’t kill us ALL, Nazis!

 

Leah Litman So that clip Kate just played is actually from the events that unfolded right after Good’s shooting. And the response of Minnesotans has been heartening to me. Again, the image of the blood-soaked steering wheel with the stuffed animals in the compartment is excruciating. And It is scary to go out after this happens, to protest, to hold vigils when you have these armed, untrained zealots with guns on the street. But after seeing I shoot and kill one of their neighbors, people continue to protest even in the moment, in real time. And more showed up for vigils. And if and when you think people aren’t doing anything and there is no resistance, like, think of moments like this, people are just showing up on their own as a community, not because someone is telling them to do so, or it’s organized top down. ICE, of course, made everything worse. In the immediate aftermath of Goods Murder, public schools in Minnesota had to shut down because of safety concerns. ICE showed up to a school, Roosevelt, and shackled people, tear gas students, at a school. The day after an ICE officer murdered Good, immigration officers reportedly CBP shot and seriously wounded two people in Portland and then, again, left them in the street. And I just wonder, like, is this an escalation, you know, as there are more protests and pushback and, like the regime and its lackeys, like get more desperate? Like is this now?

 

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

 

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

 

Leah Litman Another apparently objectionable book shows a picture of a pregnant woman walking together with another woman, which could imply that they are gasp the horror lesbians. I don’t know. Neil Gorsuch might have a different take. Right. He would think that they’re drag queens or like BDSM sex workers. Yeah, yeah, yeah

 

Melissa Murray That was his take on Pride Puppy. Anyway, speaking of civil wrongs, our Assistant Attorney General of Civil Rights continues to cover herself in absolute glory. In this social media savvy administration, it is hard to outship post your fellow Senate confirmed officials. But the Assistant Attorney general for civil rights, one Harmeet Dhillon, certainly tried. Ms. Dhillin, like other Trump officers, has been criticized by right wing influencers. Because they don’t think she’s done enough to be really, really right-wing and MAGA. And in particular, they note that she has failed to launch politically vindictive prosecutions of every single person who ever investigated anyone involved in the January 6th insurrection. And Ms. Dillon took that personally. Like any other diligent public official, she decided to get on X slash Twitter where she posted the following. Conservative influencers, if you think you are keeping the pressure on or winning by spreading bullshit attacks on Donald Trump’s hand-picked cabinet, you are not. You are earning money to spread misinformation. You are hoes. Learn an honest profession. Meow, bowl of milk to table three. What? Okay, so there’s so much to unpack here. I never thought I would see the day. When the assistant attorney general for civil rights would get on social media and call people hoes.

 

Leah Litman I didn’t either. I read that, and I thought this has to be fake. It was not. I thought so, too. And we should all take stock of the norms such as they are. What is objectionable apparently is a picture of two women walking together. What isn’t objectionable is calling right wing pundits hoes. So this is the new civil rights or whatever it is they’re propagating over there.

 

Kate Shaw I guess when you spell it like a garden hoe, there was that I mean, that was like the least of the problems. Isn’t that how it’s spelled? I mean how do you spell? It I mean just a show. There’s a there’s a long opinion about this is the plural. The plural is tricky. What’s the style guide for how I just remember a Posner opinion that somebody dredged up after this. That was the year before I clerked for him that had a long footnote. About a mistaken transcription of an accusation that someone was a ho ho e and the footnotes has something like Yeah, yeah, yeah it’s still a ho e s I think is questionable as a plural I hear you ho s you think looks like Haas. Yeah. Yeah, you could throw in an incorrect but but sometimes, you know, like no this is not this is

 

Melissa Murray have incorrect apostrophes. I can’t tell you how aggravated this made me during the holiday season when I was like, do I have to send a style sheet to everyone who has a plural?

 

Kate Shaw Well, what is the plural of hoes for holiday hoes?

 

Melissa Murray Now, you know, when people have an S on their last name, they can’t like, you’ve got to do yes. And so they do know positive. I’m like, no, honey, no. Yes, no no.

 

Leah Litman Standards are high. Speaking of parsing language, that’s my attempt. Good segue. We got the Supreme Court’s first opinion in an argued case. It was Bowie versus United States, an important habeas case. This was a five to four opinion for the most part, although one part was five to three. Justice Sotomayor wrote for a majority that the limitations in the Anti-Terrorism and Effective Death Penalty Act that specifically, like explicitly, apply to petitions brought under 2254, the provision governing post-conviction relief for state prisoners do not apply to petitions bought under 2255, the provision-governing post- conviction relief for federal prisoners. So under EDPA, claims that are re-raised in a second or successive 2254 petition, again, those are petitions brought by state prisoners, must be dismissed. But the law contains no similar provision on 2255 for federal prisoners, and the court said, you know what? Textualism. The text, it matters. At least five of them said this. The court also said that another provision governing second or successive petitions, which prevents petitioners from filing cert petitions that is asking the Supreme Court to hear their case when their request to the Court of Appeals to file a second or That also doesn’t apply to 2255 petitions again federal prisoners as opposed to state prisoners noted textualists Neil Gorsuch wrote the dissent for himself Alito Thomas and Barrett Barrett only joined, you know the opinion on one part of that not the other she listened to the law She just didn’t like what it said. I would have put this opinion in my favorite things, but I’ve already got another opinion in

 

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

 

Leah Litman Idea. No, maybe there are just no unanimous opinions, right? And this is the sign about where we are.

 

Kate Shaw We have to entertain that possibility, yeah. So, I think that’s, yeah- It’s a post-consensus court. Yeah. I think they might’ve just told us that. Yeah.

 

Leah Litman [AD]

 

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

 

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

 

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

 

Melissa Murray Really depends on who you count as people. People. And hurt.

 

Kate Shaw People and hurt and looking to versus just incidentally managed to do so. Yeah, you’re right. A lot of potential questions embedded in there.

 

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

 

Kate Shaw That was absolutely an insane interview that was.

 

Melissa Murray Yes, I actually thought this was the least insane thing about the interview.

 

Kate Shaw No, no, no. Tell me how.

 

Melissa Murray He’s basically like this is actually kind of like a property law sort of thing. He was like, right now, we don’t have like, we could work with Denmark through NATO to have some, you know, access to Greenland, but that would make us renters. We would never be able to actually improve the property. That’s why we need to own this is basically a property law theory.

 

Kate Shaw But that’s tangible! What about psychologically needed? Like that’s the part that was so peculiar and perplexing. That’s because he thinks of himself as a real estate mogul.

 

Leah Litman He has the mindset of an owner. He’s like, I’m not a renter. I’m not short-term. And so he needs to invade a NATO ally, right? That’s the part that makes us feel a little like him. Mindset of an owner.

 

Melissa Murray We don’t have like, Leah, like you got to understand the New York real estate market to really inhabit this. Obviously, like, you know, like renting is different. Like you put up walls, but are you staying there forever? Who knows? He’s like, You can do more. It’s better for your psychological success to own.

 

Kate Shaw The stuff he’s doing to the White House does not seem like renter stuff.

 

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

 

Leah Litman Let’s talk about some of the things that are psychologically needed for our success, our favorite things. Good idea. So good segue, Leah. You’re crushing it in 2026. 2026, I agree. I will start. Thank you. So I appreciated Chris Guidner’s piece on Laudorgue. Jan Crawford’s attack on SCOTUS corruption narrative was its own substantive free narrative. Also, Sherrilyn Ifill on Sherrilyn’s newsletter over at Substack, the year America broke open, kind of reflecting on the first year of the Trump administration and what we should take from it. As I mentioned, I have an opinion that goes in here, and that is the Wyoming State Supreme Court decision striking down the state’s abortion ban, which is subject to only the narrowest exceptions. The court held that the Wyoming Constitution includes a fundamental right to health care and that abortion is a necessary component of women’s healthcare. Because this law implicated a fundamental right, the court applied Strict Scrutiny, the best standard, as we often say, to strike down the restriction. On a less substantive note, over the break, I read all of the Game Changers series, the books. All of them? Yep, and I watched Heated Rivalry. So the books you know they’re not like my favorite romance books you know they are cute they’re endearing they get like a little formulaic by the end and then my sister youngest sister insisted i watched all of heated rivalry the first three episodes i was kind of like i don’t really get it you know like it’s a thing then the end of the fourth episode my soul left my body i was levis levitating. I cannot listen to the remake of all the things you said.

 

Melissa Murray Oh, I love that tattoo, tattoo.

 

Leah Litman It’s a remake of the song by another artist that I’m blanking on. It plays at the end of episode four. You will not be able to listen to that song without reliving the end of episode 4, I guarantee you. I’m not, I’m teed up for episode 3. Okay. Make it through episode 3 and then episode 4 life-changing, episodes 5 and 6 endearing. So that’s all I will say there. Kate has a look on her face, it’s just like..word.

 

Kate Shaw No, I plan to I plan to watch this. I’m still finishing the most recent season of White Lotus, which I promise I’ll finish. And then I’m going to do the beast in me, which i am excited about. Did you guys watch that?

 

Leah Litman I watched that. I love Claire Danes. I love Matthew Reese. I did not love that show.

 

Kate Shaw Okay, but still worth watching.

 

Leah Litman Yeah, yeah.

 

Melissa Murray Brittany Snow is having an amazing year between that and The Hunting Wives, like good for her. Yeah, for sure. For sure. Yeah. Especially after the whole thing with her.

 

Leah Litman I know. I know

 

Melissa Murray You know what?

 

Leah Litman Um, one other item and my favorite thing, um, this upcoming Wednesday, January 14th from 12 to 1 30 in the upper Senate park in Washington, DC, there’s going to be a big rally, rally for America’s workforce, PAWA, P-A-W-A to the people. So in March, the Trump administration issued an executive order that stripped collective bargaining rights from like 85% of the unionized federal workforce, um and protect America’s. Workforce Act, PAWA, passed the House last month that would overturn that executive order and restore collective bargaining rights. And the January 14th rally is aimed at pressuring Congress to actually pass PAWA as part of upcoming appropriations. So if you’re in DC, it’s January 14, 12 to 1.30 in Upper Senate Park.

 

Kate Shaw All right, I think my turn, some favorite things. Okay, I too did some reading over the break, although not as much as it sounds like Leah did. I read Audition on Melissa’s recommendation, I think in one of our last episodes in December. Katie Kinnamora. Loved it, yeah, still thinking about it. I read A Marriage at Sea, and I finally read, this is a few years old now, but David Grand’s nonfiction, swashbuckling, seafaring book, The Wager. Set in the 1740s and like the most riveting thing you’ve ever read. So a lot of seafaring disasters for me over the holiday. A couple of other things to recommend. You might have missed it because last week there was just so much news, but our friend, commander, Professor Steve Vladeck had excellent testimony before the Senate Judiciary Committee, I think on Wednesday of last week. And there are people in Congress who are still talking about impeaching federal judges for ruling against the Trump administration. And he is just incredibly forceful in his pushback. So recommend either reading or watching that testimony. Also, sorry, one more thing I said on the reading front, I feel like I wanna throw myself a party. I finally finished the Power Broker, you guys. All right, Kate. I am so proud of myself. I’d also really understand a lot of things about New York City real estate and history. That you should have understood the cycle.

 

Melissa Murray That you should have understood the psychological need to agree.

 

Kate Shaw Honestly, the Bob Moses Donald Trump nexus is significant. Oh, yeah. I have thoughts on that. I mean, many. Okay, so last thing, though, I will recommend is I met a lovely young strikti at the Albany New York Airport gift shop on December 27th when we were like dealing with absolute travel mischigas and a blizzard grounded us. We ended up staying a night in Albany, a night at Atlanta before we finally made it to Mexico for like five nights. Um, but okay, so this young woman came up to me. While I was with my 14-year-old and said, are you the podcaster, you’re an icon. She said, you are an icon in front of my 14 year old and you cannot buy that kind of publicity. It was, my 14 years old was like, dear mom, that’s so cool. Anyway, I was like I did not set that up. That just happened in the wild organically. Anyway, so sorry I didn’t get your name. I was just so excited by the interaction. But thank you for making me look extremely cool just momentarily in the eyes of my teenager.

 

Melissa Murray That’s, I mean, that is a big thing. You know, my teenager is just so overwhelmed with everything we do.

 

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

 

Melissa Murray I once I was walking with my teenager and we ran into busy Phillips, who I had testified before Congress with. And so I stopped and talked to busy Phillips for a little bit. And then on the way back, my teenagers like, how do you know her? I was like, oh, we testified before Congress together. And then my teenager was like oh, I thought it was like something cool. Ha ha ha ha! Nope, it’s pretty boring stuff, like law-related, sorry. It was like, when would I be doing something really cool with busy Phillips, like, come on. Anyway, okay, so over the break, I found unexpectedly a book that hit my sweet spot of rom-com and thinly veiled critique of the British royal family. And it was called Era Parent by Rebecca Armitage. There’s also apparently a Reese’s book. Pick, but I absolutely loved it. I thought it was fantastic. Read it in like two days. Boom. I also reread Tomorrow and Tomorrow and Tomorrow by Gabrielle Zevin, which still slaps. If you have not read this book, pick it up. It’s so, so good. I didn’t read it for almost two months because the blurb on the back suggested that it was related to video games. And I was like, why do I want to do that? I hate video games, but it’s not really about video games and it’s just. An amazing epic friendship story. Pick it up. It’s absolutely fantastic. At the urging of many friends, including Leah, I just started Heated Rivalry on HBO Max and loving it. Just like red, white, and royal blue only with hockey. I love it. So good. So if you watch us on YouTube, when you’re done watching our entire episode on YouTube pivot again to Ziwi. I know I’ve recommended her interview with Eric Adams. She dropped a banger of an episode with rapper Vince Staples over the holidays. I’ve probably watched it 50 times. These two have such amazing chemistry together. I literally want them to do Heated Rivalry Part 2, where they get together after the interview and have babies or something. It’s so obviously charged. They definitely have chemistry. And it’s a hilarious interview. I also saw some stricties in the wild. So I want to say happy new year to the stricties whom I met in line at Universal Orlando. I hope that you, unlike me, did not wait 240 minutes, literally four hours, to ride Hagrid’s magical motorbike. How was that? I did not ride. I was just literally waiting for a child. I dropped the child off at 1 o’clock to start the ride to get in line. I picked the child up. At five o’clock.

 

Kate Shaw Wow, I was like, was it worth it? Yeah, and what was the answer?

 

Melissa Murray And I’m like, okay. I mean, I guess they have to learn patience and.

 

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

 

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

 

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