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Are President Trump’s tariffs illegal? Will the independence of federal agencies be a thing of the past? Is birthright citizenship about to be taken away? These are just a few of the consequential questions before a Supreme Court that’s hell-bent on destroying obstacles to President Trump’s executive power. Alex talks to two plaintiffs at the center of of these cases, Toymaker Rick Woldenberg and former FTC Commissioner Rebecca Slaughter. Then, she sits down with NYU Professor and Strict Scrutiny host Melissa Murray to put it all into context and talk about what the long term impacts will be of a Supreme Court where corruption and partisanship are now out in the open.

 

TRANSCRIPT

 

[AD BREAK]

 

Alex Wagner: Hello, everyone. We are coming up on the end of a year that many of us would very much like to forget. There have been mass deportations and ICE dragnets, the Bezos-Sanchez wedding, the dismantling of the federal government, Elon Musk’s ketamine habit, doubling down on fossil fuels and reversal of climate progress, Tucker Carlson interviewing Nick Fuentes, the demolition of the East Wing of the White House, Katy Perry in space. I mean, I could really just go on. All of it just awful in different ways, of course. The most terrible parts of this year have been the result of a president run amok. Trump now sits in a White House construction site, largely unconstrained, and surrounded by stooges who have carried out even his most unhinged and often unlawful orders. But occasionally, if there has been any check on Trump’s power, it has been thanks to the courts. And I should be clear here, I mean the lower courts. As we sit at the end of this bruising year, the country is on the precipice of some very, very big decisions, ones that could cement Trump’s absolute executive power and reshape American life in a way that outlasts Donald J. Trump and maybe even MAGA itself. And all of these decisions rest in the hands of the nine justices on the Supreme Court. We’re talking cases that will determine the future of voting rights. Birthright citizenship, gay and trans rights, the independence of federal agencies, and the legality of the Trump tariffs, which you may have noticed are currently asphyxiating the American economy. And if the lower courts have been a powerful check on Trump’s worst impulses over at the Supreme Court, it is an entirely different matter. The court’s 6-3 conservative majority is populated by men who fly insurrectionist flags over their summer homes and take luxury vacations with right-wing activists. So yeah, the high court has done a great deal to cement Trump’s power and send this country way back in time. And those justices ain’t done yet, not by a long shot. I’m Alex Wagner. And this week on Runaway Country, we’re talking about the political agenda at the highest court of the land, what the justices are considering right now that will make or break our democracy and also what happens next. To answer these questions, I will be chatting with my friend and fellow Crooked media host, Melissa Murray from Strict Scrutiny, a fantastic podcast on all things SCOTUS. Melissa is also a legal scholar, a professor at NYU, and she used to clerk for Justice Sotomayor. So she is literally one of the best in the biz to escort us down this long and winding road.

 

Melissa Murray: I just think there’s so much going on that it’s hard to focus on the court when we’re literally watching a monarch slash autocrat take shape. So that might be part of the problem. It seems like the attention on the Court is diminished, but that’s because there’s just so much other stuff. It’s literally like being at a zoo where chimpanzees are flinging feces at each other.

 

Alex Wagner: And at us.

 

Melissa Murray: Right. It’s like, where do you look first? Where do you duck first?

 

Alex Wagner: But first, what is it like to be at the center of one of these landmark Supreme Court cases taking on the Trump administration and its most unlawful ambitions? What is that like? Well, I spoke to two people who are right smack in the middle of that very specific fight. Both are plaintiffs in some of the highest profile cases on the court’s docket. The first is Rick Woldenberg. Rick is the CEO of Toy Company’s Learning Resources and Hand to Mind. Family businesses that manufacture educational toys, which they do largely overseas. Rick filed a lawsuit against President Trump’s tariffs almost immediately after they were announced.

 

Rick Woldenberg: Liberation Day was April 2nd, and I started looking for litigation on April 7th, so it took me five days to come to my senses.

 

Alex Wagner: In May, a lower court agreed with Rick that the tariffs are unlawful and in his words, asphyxiating.

 

Rick Woldenberg: We were as well prepared as we thought we could possibly be. We’d been moving product out of China. We had stocked up on inventory and we had a cost cutting plan that went into motion immediately when he started to institute the fentanyl tariffs, but nothing could prepare for a 145% tariff. I calculated an Apple’s Apple spaces that would have taken our 2024 total. Of 2.3 million up to literally 100 million, as ridiculous and as hyperbolic as that sounds, that was a legit number.

 

Alex Wagner: The lower court’s ruling on Learning Resources v. Trump was appealed because, of course it was. And now it has reached the Supreme Court. For his part, Rick is undeterred. He considers what he’s doing an apolitical cause, and above all, he thinks of it as an honor.

 

Rick Woldenberg: The American system depends on someone raising their hand, and that’s why it’s a great system. That it’s possible. I can tell you that outside of this country, some of the people we do business with are shocked, absolutely stunned that we would dare do something like this. In other countries, you can’t. In this country you can, and I think after 250 years sometimes we forget what makes this place special. This is an example of it. It’s the American system on display. It should work this way. Imagine if in your lifetime, you get the opportunity to stand up and defend what James Madison did in 1787. I personally think that the idea conceived of how this government would work, which is one of the great ideas of mankind in the history of mankind. And so the opportunity is to defend that, to stand shoulder to shoulder with him. Who could imagine having that opportunity in your life time? We think we’re standing up for what America means.

 

Alex Wagner: The other person we talked to, who’s standing up to Trump at the Supreme Court, is Rebecca Slaughter, a former commissioner of the Federal Trade Commission, emphasis on former, because in March, Becca and the only other Democrat on the commission were fired without cause by President Trump. Fun fact, Trump nominated Rebecca in his first term. Those firings were in violation of an existing Supreme Court precedent known as Humphrey’s Executor v. United States, which the court now seems poised to overturn. And if the president is allowed to terminate people from independent agencies like the FTC, the FCC, the NLRB, the Fed, and so on, those agencies will no longer be independent, at least not from the executive branch. That means the president will be able to handpick people who agree with him or her about, let’s be real, him, which has major implications for basically everything. What’s on TV, company mergers, company monopolies, union protections. Becca and I talk about how this case represents the largest presidential power grab in nearly a century and could effectively make our government a corporate kleptocracy. Here’s our conversation. Rebecca Slaughter, welcome to Runaway Country. We’re all sort of like on tenterhooks waiting to see what the Supreme Court does. And it feels like your case might be one of the ones we find out about before, I don’t know, next summer. Who knows who can know anything with this court. But I’d love to just start at the beginning. You’re nominated by President Trump in his first term to be a commissioner on the Federal Trade Commission. And then President Biden sort of renews that post for you. Um, you’re one of the, the, I think two democratic seats under Trump on the commission and then Trump gets sworn back into office when that happened this year, did you feel like your position on the FTC was tenuous? Were you worried?

 

Rebecca Slaughter: Uh, well, I mean, I have eyes and I read newspapers. So, uh, on the one hand, I was very confident that the statute, a hundred years of Supreme court precedent, the work of every president since FDR all would leave my job protected. On the other hand, I knew President Trump was planning to and watched him take a bulldozer to all sorts of parts of the federal government at first metaphorically and more recently literally and so I knew that that that bulldoze or could be coming for independent agencies, you know one thing I want to point out Alex when you mentioned that I was originally nominated by President Trump That’s true. But I think an important detail is in both of my confirmations. I was confirmed unanimously as part of a package with Republican appointees. So the Senate, in considering these agencies, not only said, okay, yes, Becca’s fine, we’ll let her keep doing this, but it is important to us that these commissioners come in in a bipartisan way. There’s negotiation that happens there. And so unilaterally changing that upsets not just centuries of tradition, but even the most recent bargains that were struck by the Senate in confirming me and at the time Commissioner now Chairman Ferguson and Commissioner Holyoak together in a package in 2024.

 

Alex Wagner: You were a package deal, as it were.

 

Rebecca Slaughter: Exactly.

 

Alex Wagner: So you are aware of what this president’s intentions are at the beginning of the second term. He’s not being subtle, he’s not being skillful, but take me back to the day when you find out you’re fired and when that was and sort of how you received the news.

 

Rebecca Slaughter: Well, I think I even need to go back a little bit further. From the beginning of the administration, Commissioner Bedoya, the other Democrat on the FTC and I were watching carefully what was happening at other agencies. We saw the Democrats at the Privacy and Civil Liberties Oversight Board get fired. We saw Democrats at The National Labor Relations Board, the Merit Systems Protection Board, they all got fired. So we were sort of thinking, are they coming for us? I don’t know if they’re coming for. But we were both very committed to saying, no, our obligation is to do our job, to uphold the oath that we’ve taken and not to live and act out of fear. We need to be doing the jobs the best we can. So that’s what we were doing. We were both proceeding as well as we could with all of the chaos that was happening in the federal workforce. The day I was fired was March 18th. I worked a full day and I went to my kid’s elementary school where I was volunteering. Um, in the evenings for the very, very high stakes, uh, elementary school production of Beauty and the Beast.

 

Alex Wagner: I mean, that is high stakes. You do have two high stakes hats you wear.

 

Rebecca Slaughter: Correct. Uh, my daughter was Belle. I don’t want to brag, but she’s pretty amazing.

 

Alex Wagner: Whoa, whoa, really high stakes!

 

Rebecca Slaughter: I know. So this was like, for this fifth grader, it was like this is all of her dreams and hopes and passion. I was sitting outside the rehearsal space. And, um, I checked my work phone and I had an email from someone I’d never heard of in the presidential personnel office that, uh, it was very long, but the upshot of it was you’re fired effective immediately.

 

Alex Wagner: Wow.

 

Rebecca Slaughter: So, uh I stepped out into the courtyard of the school and the first person I called was Alvaro Bedoya, the other democratic commissioner, and he had the identical email, um. So then we had to leap into action and say, okay, what do we do next? This hasn’t happened in over 90 years at our agency. And the last time it happened, a unanimous Supreme Court said it was illegal. So I think the way I’d describe it is we were both shocked, but not surprised. We knew it could happen, but it didn’t make it any less shocking and disruptive to these institutions, our institution, but they’re not the only ones that we serve.

 

Alex Wagner: I just, to get to the sort of human level of this. You’ve done some preparation. You’re a citizen of the world. You are well aware of what this president is capable of and what his desires are. But you’re also in the government to do the right thing by the American people. You’re part of an independent agency that conducts really important sort of like oversight for foundational sort of democratic values. And you’re at your daughter’s performance of Beauty and the Beast. Where she’s playing Beauty, which is like, as a mom, a big deal and as a Disney fan, a big deal. So like, what did you do? I mean, how did you feel about it in that moment?

 

Rebecca Slaughter: My first thought was, okay, how do I respond appropriately professionally, look out for the people on my team that need to be looked out for? That was my first concern, you know, the people who work for me, how is this going to affect them and how can I make sure that they are as safe and secure as possible? And then how can I protect my family? Because this was also breaking news and you know I live in the suburbs of D.C. And so. I was getting alerts on my phone about me and what I really was worried about was my kids hearing from other kids that something that sounds very scary had happened to their mom and I wanted them to know that we were going to be okay as a family and as people and to not feel scared or to misunderstand what was going on even as they could understand that I was upset and this was not good from my perspective. So I was trying to juggle all of those things while pacing in an elementary school courtyard. So I did a press conference from the parking lot of the school on my phone that evening while the rehearsal was running. And I was able to make it to all of the rehearsals and all of the performances because the one thing I kept saying when people are like, oh, you can bow out, we can step in. And I said, no, these people can try to take my job. But they cannot take drama club and the joy of performance from me and these elementary school kids.

 

Alex Wagner: You may try to dismantle the independence of federal agencies, but you will not take Beauty and the Beast from me.

 

Rebecca Slaughter: Correct, correct. You’re not coming for this small slice of joy that these kids have. Like it must be undisturbed. But also I think, you know, it’s less, it’s selfish as much as selfless. Cause for me, it was a really fun, wonderful, grounding thing to be a part of when my professional life felt like it was in a very public dumpster fire.

 

Alex Wagner: Well, right now you’re the lead plaintiff in a case making its way to the Supreme Court that I believe Matt Ford in the New Republic basically said it could be the largest sort of presidential power grab since the New Deal and that this is, you know, if this really has your case, depending on how the court decides it could change the really American society, the way in which companies and corporations are able to sort of prey upon American consumers, the sort of you know, officially making it a corporate kleptocracy up there at 1600 Pennsylvania. I mean, just the implications of all of this are vast. And I think it’s really interesting to know that even when you are central to this massive historical Supreme Court case, you’re also just a human being that is a mom trying to put one foot in front of the other.

 

Rebecca Slaughter: That’s true. And like, that’s also true of every other person who’s in the middle of the upheaval of federal government, whether it’s like the, you know, person who’s been a mine safety worker for decades who lost their job, or like anyone who works at USAID, like these are all humans who are public servants, and are in the midst of this massive upheaval and the upheaval has huge stakes. But also in like the micro level, it’s these are people doing work for their fellow Americans. Um, and I, and think it’s really easy to lose sight of that when we hear lots of rhetoric about, you know, deep state bureaucrats.

 

Alex Wagner: Sure.

 

Rebecca Slaughter: Which is really unfair.

 

Alex Wagner: And I’m 100% with you on the putting a face back on the bureaucracy and reminding people that these are civil servants who are trying to make the country better and were functional. But you have become, I mean, you’re doing podcasts, you doing TV interviews, you decide to sue the federal government, which is a very, you know, and now it’s we’re waiting for the Supreme Court decision to be handed down. How do you make that decision? I mean it’s what happened to you has, as I just said, like historic implications. So maybe it wasn’t a huge decision to say, I’m gonna go out there and do this, but can you walk me through that process?

 

Rebecca Slaughter: Look, candidly, I’m doing media, doing podcasts. This is not my comfort zone. It’s not the thing that I have like been the most excited about in my career. I’m getting more comfortable. You know.

 

Alex Wagner: You’re doing great.

 

Rebecca Slaughter: I’ve been thinking about this as a growth year, uh, but it is, it’s not my favorite, um, but the reason I’m, doing it and the reason I’m in the lawsuit is because the stakes are so high and because I think the issues are so important. And… That’s true in a lot of places, and a lot people are on the other side of actions by this administration, and they’re not in a position to push back. They don’t have the community, familial, financial support to stand up in court or in whatever way is appropriate. And I do, and if I have that, if I those resources and I choose not to do that, I would not. I would feel terrible. That would feel really bad. Cause I think if I can’t do it, who, if I won’t do, who will do it? And I’m so mad in my head about the institutions, especially the extremely wealthy institutions, law firms, universities, that have seeded principles on which I think they have relied for a really long time in the face of some of these threats. And so I feel like it’s important not to do that, but it’s also important to stay grounded in the middle of it. But we can talk about the stakes because that’s that is like, you know, I keep saying to people this cases—It’s technically about me, but it’s very very much not about me. It is about the organization of the federal government as congress designed it for a reason and whether one president is going to be able to upend that not by getting new laws passed not by legislative negotiations not by convincing the public but by ignoring the law as it’s written and has been enforced for over a century and asking the Supreme Court to accept that. That’s just structurally, that’s a big deal. But why do these laws matter? What is an independent agency? People say, Becca, shouldn’t the president be able to fire whoever he wants? And I think what we have to step back and look at is actually Congress set up agencies, the Federal Trade Commission and about two dozen others. As multi-member, bi-partisan, independent boards and commissions. And it gave these agencies the powers that they have because they have that structure. They did not want these agencies to be single headed, politically influenceable, subject to political influence, it’s better English. And that’s really different. And what do these agencies do? To the Federal Trade Commission. Investigates competition, antitrust violations, consumer protection, privacy, matters of real huge stakes to individual people. There’s the Consumer Product Safety Commission that deals with unsafe products on the market. There is the SEC, which deals with our securities markets. There’s the Federal Communications Commission, which deals the telecommunications market. And we’ve already seen this year what happens when the president tries to exercise political influence. Over the Federal Communications Commission, because he doesn’t like a comedian making jokes about him.

 

Alex Wagner: That is a Kimmel reference.

 

Rebecca Slaughter: So Congress did not want—That was a Jimmy Kimmel reference. Yes. Sorry. I didn’t mean to be oblique. That was meant to be an explicit Jimmy Kimmel reference.

 

Alex Wagner: I think people are keyed in on it. I think they know.

 

Rebecca Slaughter: We’re watching another example in real time with this debate about Netflix and Paramount and Warner Brothers discovery that the president has basically explicitly said. He’s going to be involved in which buyer gets to pick up an enormously significant and influential media asset. And not only is he going to be involved in it, he basically is going to play favorites based on the quality and the content, not the quality, the content of the coverage that, for example, CNN does. That is a radical, radical difference in how our laws are supposed to be administered.

 

Alex Wagner: More of my conversation with Rebecca Slaughter right after this break.

 

[AD BREAK]

 

Alex Wagner: I think at this point, the American public is more clued into the importance of having a sort of regulatory infrastructure around this president, aka guardrails. And I would hazard a guess that it’s a popular opinion that the president shouldn’t have an unfettered access to everything at all times and, you know, companies shouldn’t be doing his bidding and a press should be independent and free and. Like in other sort of, a lot of there is a very principled fight here that you are fighting, and yet the Supreme Court is going to be the one that makes this decision. And what we know of the Supreme court is by and large, they have taken the shackles off to the degree that they existed. They are really into this unified, unitary executive theory, giving the president as much power as possible. And on this particular issue. Right? Where you and I, I think, see something like the FTC or the FCC or any or the SEC alphabet soup. These are the sort of bulwarks against executive overage. Brett Kavanaugh, one of the justices in the court, sees it as sort of in the opposite light. This is a quote from what he has written on this front. “Because of their massive power and the absence of presidential supervision and direction, independent agencies pose a significant threat to individual liberty and the constitutional system of separation of powers and checks and balances.” Literally the inversion, which is that you guys are the problem and you need to be supervised by the president. What do you make of that? And what’s your level of optimism here as your case waits to be decided at the court?

 

Rebecca Slaughter: Well, substantively, I disagree. You know, I think the president retains a substantial amount of influence at these agencies without under the statute, without being able to have absolute control. So the president nominates all the commissioners from both parties and we serve staggered terms. So any president over the course of his administration gets to nominate multiple of these commissioners and usually all, cause people turn over sort of faster than their terms. The president requests the budget for the agency. The president designates the chair of the agency, so if the president doesn’t like what a chair is doing, he can pick a different chair from among the other commissioners. So there’s still plenty of presidential control, number one. There’s also lots of congressional oversight. I probably testified a dozen times in Congress between confirmation and oversight hearings, and we have to go to Congress. And be accountable to them for our budget, how we spend money, action. So I disagree with the idea that there is a limited political accountability. I will also tell you, this hasn’t come up in the legal arguments, but just for me as a human, I have never understood the idea that a term limited president provides more political accountability than oversight through Congress where members are up every two years. Like what is the political accountability? When decisions are being made by a term that a president who can’t run again. I just, just as a person that doesn’t make sense to me.

 

Alex Wagner: That is but a detail to Brett Kavanaugh.

 

Rebecca Slaughter: I know that has not been a part of the legal arguments and my lawyers are much better at all the legal side than I am. I’m just sort of giving you my armchair lawyering account of it. So, so that’s, you know, that’s what I think one of the mis-impressions is the idea that this is bureaucrats run amok. Rather than, I think, responsible leadership crafted as part of a bargain by Congress with presidents. So the other thing to remember is a president signed the FTC act and the SEC act and the FCC act and all of the other bills that set up these agencies. And by the way, we haven’t all even talked about the Fed, which is another huge looming issue here.

 

Alex Wagner: Yeah.

 

Rebecca Slaughter: Because the Fed is a similar the exact same structure and there’s no principled way to distinguish between a unitary executive that requires control of the Fed of the FTC, but not of the Fed. Like that’s, that’s not a thing. Okay. So then your second—[laughter]

 

Alex Wagner: I mean, well, just given where this court is at and the questions they asked when the case was heard and the position of Kavanaugh and the other conservatives on the court, I mean…

 

Rebecca Slaughter: Here’s how I think about it. Number one. Our. I think a lot about the adage, a former boss of mine said, is that our obligation is to seek justice, even if we’re not guaranteed to achieve it. So I feel very strongly about making the arguments and standing on the principle. And part of the reason I’m talking to you, I’m taking to the press, and like I said, nothing personal to you but not my favorite thing to do is because I want people to understand. Why this matters, and that it’s not just sort of a cloistered ivory tower academic distinction, but it’s one with real stakes for the people who rely on the institutions of government to protect them in our economy, in the markets. So I think it’s important to do the right thing, even if you’re not guaranteed to win, number one. Number two, I also think that there’s limited value in tea leaf reading from oral arguments, like we don’t know what will happen after the oral arguments on the ACA. Everybody thought that law was doomed, and the decision came out differently. So who knows, it’s absolutely worth having the conversation. And then if we were not to prevail, I think a thing that I hang on to all the time is that it is much more important to be on the right side of history than on the winning side of a particular case and over the course of our country’s history. There have been a lot of really bad Supreme Court decisions.

 

Alex Wagner: There sure have.

 

Rebecca Slaughter: Like, there’s a whole legacy of decisions that come down at the time, and then history shows how wrong they were, and the country moves to correct them, whether through statutory amendment or constitutional amendment or political change, or just overturning of the decisions. Dred Scott, Plessy v. Ferguson, and they’re like, there’s like, I mean, and those are the ones that everybody knows off the top of their head. But, but there are dozens and dozens in the centuries our country has been around of Supreme Court decisions that have certainly not stood up to the test of time and get reversed. And so. That. You know, that is also something that I bear in mind. And then the last thing I think is, what’s the alternative, right? What’s the alternatives to being in this case that might come down in a way that I think would be very bad? It would be ducking out of the case and ducking of the fight to avoid that bad decision. But like, if it’s gonna come, it’s going to come. And I would not feel better taking a pass on principles about which I care and to which I have dedicated my career. So, you know, those are those are the thought cycles that I go through, but it can feel discouraging to read a lot of negative commentary about the prospects of the case. And so then I just try to focus on what I can control in my time and how to do the right thing in the right way for the right reasons.

 

Alex Wagner: Well, listen, it ain’t over till it’s over. As you say, it’s about planting a flag in the ground and saying, we will not abide this. And we’ll see what the court says and we’ll how it all shakes out in history.

 

Rebecca Slaughter: Yeah, can I actually make an edit? It’s not only that it ain’t over till it’s over. I don’t even think it’s necessarily over when it’s over, because should we lose, that’s when people start to see the real life consequences of these kinds of decisions, which, like I said, can feel very academic, but I think are, in fact, really important for everyday people. And that’s how things change over time. When people are like, oh, wait, no, this is bad for me. This isn’t just like lawyers, lawyering. This affects my ability to get the support or relief or protection I need and to which I am entitled from the federal government when I’m not an oligarch, when I am not a massive ballroom donor, when I just a working American, like the government should be on my side. And when they see that it’s not and how those favors play out, I think that’s how change happens. And so that’s part of why I think it’s important not only to do the case, but to talk about it and help people understand why anyone outside of the beltway should care about the alphabet soup of agencies and what their leadership structure is.

 

Alex Wagner: You make a very compelling case, both for winning by potentially losing and just winning for winning sake. Thank you for explaining to all of us what the stakes are and just what it’s like to be at the center of a really big, really important fight. Thanks for fighting it.

 

Rebecca Slaughter: Thanks Alex, thanks for having me.

 

[AD BREAK]

 

Alex Wagner: Melissa Murray, I think about you often as the news from the highest court in the land continues to be a drumbeat of negative [laughter] horse shit. That’s great. No, I don’t, I won’t, no, I’m like—

 

Melissa Murray: I think of you as the world falls apart and Brett Kavanaugh strokes a hairless cat. [laughter]

 

Alex Wagner: Well, in the way that people who are like drowning think of lifesavers and they’re like, this person can help me understand. I’m very happy to have you on this podcast. I am very happy that we’re colleagues at Crooked Media, even though we’re never in the same room at the same place. But right before I started speaking with you, we spoke to Rebecca Slaughter, who is the lead plaintiff in Slaughter v. Trump. And I know you guys on your brilliant podcast, Strict Scrutiny went to some very thoughtful detail about the implications of that. And for people who have not yet listened to that episode, I just wonder if you could put it in context in terms of the stakes here and why the president shouldn’t be able to fire commissioners or heads of independent agencies without cause, willy-nilly, and what the implications are for, I don’t know, democracy and preventing this from becoming a full-blown kleptocracy.

 

Melissa Murray: Sure. Can you give me a little room to cook? Cause like, I think this requires—

 

Alex Wagner: Oh girl. I’m stepping out of the kitchen.

 

Melissa Murray: Okay, here we go. So listeners, the Federal Trade Commission is what is known as a multi-member agency. And it was actually created by Congress in 1914 for the purpose of protecting the public from deceptive, unfair business practices. It was part of this trust-busting effort to prevent the consolidation of wealth in industries. Because those kinds of consolidations often accrued with the consumer being on the short end of the stick. So this is very much a kind of consumer protective move to create the Federal Trade Commission. And in creating the FTC, the Congress specifically structured the agency so that it would be insulated from politics and operate independently. So it has five commissioners and the commissioners are appointed by the president and they are confirmed by the Senate. For seven-year terms, but no more than three of the commissioners can come from a single political party. And Congress has made very clear in the statute that created the FTC that the president cannot remove a commissioner for any old reason. If the president wants to remove a Commissioner of the FDC, he can only do so for cause. And those causes have been, quote, “inefficiency, neglect of duty, or malfeasance in office.” So a pretty limited set. And that pretty much mirrors the structure of a lot of these independent agencies, like the Federal Reserve, for example, the Federal Communications Commission, the Federal Elections Commissions. They’re insulated from politics because people recognize that they are expert agencies and they have to operate independently, unconcerned about the political wins. Okay, so this gets into Rebecca Slaughter. Rebecca Slaughter was originally nominated by, wait for it, Donald Trump.

 

Alex Wagner: What? What? [laughter]

 

Melissa Murray: Okay, I know. It is a wild and wacky story. I’m not. In his first term back in 2018, Donald Trump, liberal squish, nominated Rebecca Slaughter to serve as a commissioner of the Federal Trade Commission. The problem, though, was that she did her job relatively well. She was independent. And when Joe Biden came in, he reappointed her to another term, and her new term is scheduled to end. In 2029. So when the new second Trump administration comes in, they’re looking around and apparently Rebecca Slaughter has too much of the taint of Biden on her.

 

Alex Wagner: Yeah she has the stink of Biden on her. She must go. She must go, and you should know Melissa, she was at her daughter’s rehearsal for Beauty and the Beast. Side note, her daughter was playing Belle and got the email that she was fired. Literally out of the blue. I mean, it wasn’t unexpected, but there was no cause.

 

Melissa Murray: Unceremoniously removed via email and ostensibly to create a vacancy that would free up a position on the FTC for a commissioner who is perhaps more aligned with this administration’s trade priorities. So again, Slaughter has a really good case because the statute makes very clear the president can only get rid of you for cause and there’s no cause here. So she files a suit on the ground that the removal is unlawful and violates the separation of powers specifically. Congress’s authority to set the terms under which these multi-member agency commissioners can be removed. And she has some really good precedent on her side. So back in 1933, another president, Franklin Delano Roosevelt, also wanted to fire a commissioner of the FDC, one William Humphrey. And Humphreys sues—

 

Alex Wagner: Sue. I see where you’re going with this. I’m seeing where you are going with. The name of my new jam band is what?

 

Melissa Murray: Stare Decisis Is For Suckers?

 

Alex Wagner: No I was gonna say my jam band’s gonna be called Humphrey’s Executor, which is like the—

 

Melissa Murray: Oh, that is a good jam band. Like, Stare Decisis Is For Suckers is obviously the first single from your album. [laughter] And I hope when you release it, you hit the lean that lets people know that it’s going to be a great album. That Luther Vandross lean. Exactly. Exactly, right. So she’s got Humphrey’s executor on her side. This is a 1935 precedent from the Supreme Court where the court basically upholds the Federal Trade Commission statute saying that the president cannot remove the commissioners for anything but cause. So inefficiency, neglect of duties, malfeasance, not just because you don’t like this commissioner or she has the stink of Biden about her. So that’s where we are. The problem, of course, with precedent is that this court, the—

 

Alex Wagner: I know. Can we just stop? Can we pause on that? Because it’s like, there’s so many reasons to be indignant about this. But like, this court has cloaked itself in, you know, originalism, stare decisis, precedent, these theories, some of which were basically invented for political expedience a couple decades ago, but nonetheless. They see themselves and they’ve positioned themselves as the sort of arbiter of tradition and the keepers of tradition. And here, the minute tradition is inconvenient for them, a case that is the same case that’s a century old, they’re like, yeah, fuck that. Or in the words of the great Dahlia Lithwick, the emperor is butt naked, the emperor being, the court.

 

Melissa Murray: The Emperor is butt naked. They’ve had Humphrey’s Executor in their crosshairs for some time now. Back in 2020, they had another case called Seila Law versus CFPB. This was a challenge to the structure of the Consumer Protection Bureau. They essentially said that that particular structure was impermissible and it could be struck down. They left open this broader question of whether Humphrey’s Executor would continue to stand and that Congress could structure these other multi-member agencies. The CFPB was different because it was a single person-headed agency, but that was what made it different.

 

Alex Wagner: Like what?

 

Melissa Murray: Again, the logic isn’t logic-ing, but whatever, Brett Kavanaugh is on this court. So it’s fine. And they’ve already begun chipping away at it. So, you know, everyone knows that Humphrey’s executor is in the crosshairs and it’s in the crosshairs for a number of reasons. So one, Humphrey’s Executor completely goes against this made up fan fiction theory called the unitary executive theory that has been cooked up in a meth lab of conservative grievance, where they essentially say that all of the executive power that’s available in the constitution, so everything in the administrative state, everything in administrative agencies, all of that is vested in the president. And so the president gets to make all of those decisions, including deciding who gets to stay and who gets to leave. So it’s a very sweeping theory, not really supported by constitutional text. It’s not explicit.

 

Alex Wagner: I think it sounds like monarchy a little bit.

 

Melissa Murray: I mean it does sound sort of like a monarchy.

 

Alex Wagner: It does sound a lot like L’État, c’est moi, or like King Trump. I mean I’m just like, spitballing.

 

Melissa Murray: I mean you’ll be back like before and we’ll fight the fights we had before. I mean, it’s very Hamiltonian in its way. Yes, we had a whole revolution about this, but this idea of a unitary executive very much smacks of monarchy, but that hasn’t made the conservative legal movement get off of it. It’s very much on this theory because so much of its authority then gets vested in a president. And usually when… The court is interested in really prosecuting the unitary executive theory to its utmost, it’s when a Republican president is in office.

 

Alex Wagner: I was just gonna say, it’s like in their fan fiction, there’s never ever again a Democratic president, which they could make real, I suppose, and they’re probably doing everything in their power to make real. But there will be a Democrat in the White House. God damn it, there will a Democrat in the white house again one day.

 

Melissa Murray: Maybe.

 

Alex Wagner: Well, but does that, I mean, does that ever, do you get a sense that that possibility ever strikes the frontal lobe for these conservative justices? The amount of power they are giving the president could one day be the amount of power they’re giving a democrat?

 

Melissa Murray: Well, that came up repeatedly in oral arguments, like, you know, just hold the phone a minute. This is for forever, right? But I think they sort of understand in their own ways that they can sort of craft these little exceptions, make little distinctions, and essentially make this only for certain kinds of presidents, the presidents that they like, the president whose priorities align with theirs. So again, this unitary executive theory is one of the reasons why Humphrey’s Executor is in the crosshairs. The other reason is that the six Republican justices on this court have, I think, a quite deep-seated antipathy to the whole prospect of administrative agencies. And this is, I think, perhaps most pronounced in Neil Gorsuch, who has made very clear in his time on the court that he’s really skeptical of the whole idea that the Constitution would even allow an administrative agency, this idea that Congress, through a statute. Could create an agency and delegate some of its authority to do lawmaking to an agency that is operated by someone who has been appointed by the president and confirmed with the advice and consent of the Senate.

 

Alex Wagner: Can I just interrupt for a minute? Just backstory context, Neil Gorsuch’s mother.

 

Melissa Murray: Anne Burford Gorsuch or Anne Gorsich Burford? I always forget—

 

Alex Wagner: I think it’s Anne Gorsuch Burford, was the head of the EPA in the 1980s and got a rough ride from Congress.

 

Melissa Murray: She sure did.

 

Alex Wagner: Over her stewardship of the EPA, which was forever imprinted on young Neal’s mind as he went to—

 

Melissa Murray: Everyone has an origin story and I think—

 

Alex Wagner: That’s just context here as they launch an attack on the deep state.

 

Melissa Murray: Yeah. We all have mommy issues, daddy issues, and everyone has to pay for them, so here we are.

 

Alex Wagner: Here we are.

 

Melissa Murray: In any event. So again, I think one of the theories that Neil Gorsuch and others have promoted about administrative agencies is that they are somehow not democratically accountable because the people are so far removed from these faceless bureaucrats. But that’s not quite true either, because. Congress creates the agency like they created the FTC to protect the consumer, the little guy, and Congress sets up the terms by which the agency is insulated and the president, who is democratically accountable, gets to nominate someone and the Senate gets to consent to that appointment and they’re democratically accountable. So the math isn’t math-ing on this whole democratic theory with regard to administrative agencies, but they keep talking about it like, you know, there’s no way that these people are. Accountable to the people themselves. But yeah, I think that’s a harder argument to make.

 

Alex Wagner: It’s so crazy to say something. I mean, this is not the case that we’re talking about, but just in general, like the Consumer Financial Protection Bureau is not accountable to the American public.

 

Melissa Murray: Yeah, nothing to do with the people.

 

Alex Wagner: Say fucking what? Like, what are you talking about? So instead, you unwind the power of these, effectively, independent agencies that are playing a very important role in oversight. They become populated with stooges of the administration. This particular administration has proven itself. Open for business as far as billionaires, cryptocurrency, and Saudi oil money, they’ll take whatever.

 

Melissa Murray: Let’s talk about that for a minute. So I mean, I think the stakes of Trump versus Slaughter are enormous for the administrative state in general. There’s also a case regarding Lisa Cook. She’s the governor of the Federal Reserve that the president has tried to remove as well. The court thus far has prevented her removal. That wasn’t the case with Rebecca Slaughter. The court allowed President Trump to remove her. In an interim emergency order while her lawsuit was pending, so she’s been out for a while. But Lisa Cook, because the Fed is different, and apparently all of the justices have investment accounts.

 

Alex Wagner: They have money.

 

Melissa Murray: Funny how that is. Funny money. She’s still in her position, but there is a case that is percolating and will be making its way up to the court about whether or not the Fed is also.

 

Alex Wagner: An independent.

 

Melissa Murray: An entity that could be subject to these removal, these broad removal powers that the administration is asserting. So I just want to make clear what the stakes are. This has real implications for every administrative agency that has someone who is appointed and could be removed by the president or multiple people who could be moved by the president. But it also, I think, at a more granular level has real applications for this particular agency, right? So As I said, the Federal Trade Commission was set up as a kind of trust-busting effort to protect consumers from consolidations of wealth in various industries. And that’s what the FTC does. In the Biden administration, the FTC brought a lawsuit against Amazon because Amazon was basically pitching consumers on this Amazon Prime and making it really hard for them to unsubscribe from Amazon Prime. There was like an 11 step process to unsubscribe.

 

Alex Wagner: Why would you ever want to do that, Melissa? Why would you ever? I don’t know why you, I mean, we’re making the decision for us. We all need to be prime members. We need expedited delivery and the machines or the underpaid workers will get us our goods yesterday.

 

Melissa Murray: And you can never get out of it. It’s literally a relationship that will last forever, like a marriage.

 

Alex Wagner: Hotel California. It’s Hotel California.

 

Melissa Murray: So the Biden administration’s FTC sued Amazon and that litigation was expected to result in a serious penalty for Amazon.com. The Trump administration’s FTC comes in in January 2025, all of a sudden there is a huge settlement that’s brokered. The settlement is for $2 billion, so it’s not chump change, but it’s also not what you might have gotten had the litigation actually played out. So this—

 

Alex Wagner: So this January of 2025, what was happening then?

 

Melissa Murray: Well, I just want to pause for a minute. This is a very advantageous development for Amazon.com because they get out of this major lawsuit. They do pay a pretty hefty penalty, $2 billion, but not what they likely would have been liable for if the litigation had played itself out. But it’s worth noting that on January 20th, 2025, as the president was being sworn in, behind him was Jeff Bezos.

 

Alex Wagner: No!

 

Melissa Murray: The CEO of Amazon, the founder of Amazon. [both speaking] And indeed, many of the oligarchs who were flanking the president at the inauguration, Rebecca Slaughter, in remarks she made at the University of Pennsylvania, noted that the FTC was in litigation with almost all of those companies. So I mean, those are the kind of granular stakes. Those are all people sitting on that dais who would clearly benefit from an FTC that was more corporate friendly. Was more aligned with a particular ethos about consumer protection. And that’s essentially what Rebecca Slaughter’s removal is engendering.

 

Alex Wagner: More of my conversation with Melissa Murray in just a second.

 

[AD BREAK]

 

Alex Wagner: I just, we also talked to Rick Woldenberg, who’s the plaintiff in the case Learning Resources, Inc. V. Trump. That’s one of two cases the court’s hearing on tariffs. The tariff case is a landmark case, potentially for this administration. And the scuttlebutt, which I’m not really privy to, but the scuttlebutt that I have heard through the grapevine, which is to say the internet, is that they stand a chance of winning this one, that it could be a real. Fuck you to Trump and his attempt to, I don’t know, spin the American economy into a vortex of hell. And I wonder if you agree with that assessment and why the judges might like the plaintiffs in this case better than in, let’s say, Slaughter. I mean, we don’t have to unpack Slaughter because I think we know what their motivations are, but Rick was very explicit about this in our conversation. He doesn’t think of this as a political case. He thinks of this is a legal case, which I think is probably what every plaintiff says, but… Talk to me about whether you think this could be an L for Trump.

 

Melissa Murray: I do think it’s going to be an L for Trump, but not for the reasons that Rick is suggesting. I think Rick is an utterly sympathetic plaintiff. If you campaign on the economy and making things better for small businesses like the American Dream, Learning Resources, Inc. Is an ideal plaintiff and you’re clearly on the wrong side of history. These reciprocal or trafficking tariffs that the president has lofted have really decimated small businesses, made it much harder for them to operate. It’s completely inconsistent with the whole messaging behind MAGA. It might be consistent with the America First messaging in that the President is arguing that these trade deficits have really stuck it to American workers and these other countries have to pay. The problem, of course, is that there’s no statutory authority for the president to do this. So he claims. That the International Emergency Economic Powers Act, or IEEPA, gives him the authority to issue these tariffs. But the problem is, IEEPA is about emergencies. There has to actually be an emergency before the president is authorized to do something, like level these tariffs, and it’s an open question, and I think one that’s very easily answered is the ordinary cyclical trade deficit issue, is that an emergency? It happens all the time. Like, these are cyclical. Like, they’re not emergencies. It’s just kind of what happens year over year. Like they ebb, they flow, they come back, like whatever. That’s how trade deficits typically have worked. Not everything is an emergency, but the president is treating a lot of things as an emergency in order to act. So one, this case is about tariffs, but it’s also broadly about how the president uses emergency authority to take power and to prosecute his interests in a lot of different places, not just in the economy, but we’ve seen this with the National Guard and elsewhere. So that’s important to note. But I think the real winner here, and it seemed obvious from the oral arguments in November that the administration is likely to lose on this because this, you know, these justices can read and the statute makes it very hard to make the case that this is an emergency for which the president is authorized to act. But I think the real winner here is not necessarily Rick, although Rick will certainly benefit from this. The real winner, here, is the Supreme Court. And the reason the court is the winner is that it’s been putting up a lot of numbers for this administration, and it’s being catching a lot a flak for it, because people get it. Like, when you are letting the administration dismantle the Department of Education while the litigation progresses. That’s not how the court typically operates. Usually when the court issues an administrative stay, it’s to maintain the status quo. But here, you know, the status quo was we had a Department of Education and the court just allowed him to get rid of it. [laughter]

 

Alex Wagner: Chill, chill, chill. We’re gonna destroy this thing and then like when we figure it out.

 

Melissa Murray: And then we come back and we’re really going to destroy it. Yeah, exactly. So they’ve been catching a lot of heat, and rightfully so. This case gives them an opportunity to, one, save this president from himself. These tariffs are enormously unpopular. They’re also a major hit to the economy. So if you get rid of them right before the midterms, you can jook the economy a little. I think there will be a little uptick after the tariffs fall. And you know, I don’t know if these are the world’s greatest micro or macro economists, but I think they get how this works, there will be an uptick and that will, I think, benefit the president, the party and power. And more importantly, it makes this court look like there are circumstances where they are not necessarily capitulating to this president, that they are standing up to him, they’re being independent. So it solves a lot of problem. It saves this president from his worst impulses, saves the country and their pocketbooks from his worse impulses. And it saves this court from looking like the lapdog of this administration.

 

Alex Wagner: God I do have to ask on that note because we know they’re taking up the issue of birthright citizenship which we thought was pretty explicitly outlawed in the constitutional amendments, but you know—

 

Melissa Murray: Yeah, this is another one where I think it’s pretty straightforward—

 

Alex Wagner: Just to be clear, there are two that are going to be on the docket in the new year. They haven’t been argued yet. That’s Barbara V. Trump and Trump V. Washington. If you were born on US soil after the year 1848, you are a US citizen. So is the court just taking this up so that they can give Trump an L and sort of like help him save face slash create an absolute fucking citizenship crisis here in the United States?

 

Melissa Murray: So I don’t know if it’s entirely that craven. So we know that on his first day of office, the president issued an executive order rescinding birthright citizenship. And to be clear about what that means, he issued an Executive Order effectively overruling the citizenship clause of the 14th Amendment. So section one of the Fourteenth Amendment reads, quote, “all persons born or naturalized in the United States and subject to the jurisdiction thereof. Are citizens of the United States and the state wherein they reside.” And it’s pretty straightforward. If you can read, you know what this means. And for the longest time, certainly since 1868 when the 14th Amendment was ratified, people have taken this to mean, if you are born here in the United states, regardless of your parents’ status, you’re a citizen. There are a couple of exceptions. If you’re born to a diplomat who’s actually here under the auspices of another country, then you’re not a citizen because your parents are literally under the color of another foreign power. But in this particular circumstance, if you’re here, whether your parents aren’t documented, whether they’re here on temporary student visas, you are a citizen, because you were born on U.S. soil. According to the administration, that’s not what the drafters the 14th Amendment were doing. They were only trying to make the children of formerly enslaved persons citizens. So they’re basically only focused on the formerly enslaved and therefore the children of undocumented persons, the children of those who are on temporary statuses. These are not individuals who are eligible for birthright citizenship under section one. The court had to take up this case because there have been so many challenges to this executive order. We already saw one challenge. Make its way through the lower courts and get up to the Supreme Court. The court didn’t actually take up the substantive question of whether the president’s interpretation of Section 1 of the 14th Amendment was a valid one. Instead, they decided this procedural question about whether federal district courts could issue nationwide injunctions that stop the administration across the country from doing something. They narrowed the scope of nationwide injunctions, but they left open the substantive question, what does section one of the 14th Amendment mean? So they had to come back to it at some point because this executive order is still out there and there’s still a lot of questions about whether babies born to undocumented persons or people getting, you know, degrees here in the United States and studying. Are actually citizens. So that’s why this case is being heard, but I think you’re exactly right and your instincts are exactly right. If this court can read, they will make clear that the 14th Amendment means what it says and they will invalidate this EO and they will look like heroes. Everyone, all the major news networks will say, you know, the Supreme Court saves birthright citizenship. Like, I think that goes too far. I think all of the headlines should be the Supreme Court can read. Because that’s all this is, because it’s so straightforward and making these six people look like heroes for voting the way—

 

Alex Wagner: Don’t do it people!

 

Melissa Murray: Don’t don’t do it.

 

Alex Wagner: Don’t do it. I do think it’s apropos to talk about Reconstruction because yeah what the what the this court is trying to do. First of all just to be clear the conservative project for decades has been unwinding civil rights progress and what from the 1960s and 70s. I do have a forthcoming book about the Reagan years and how it was the period of like shadow retrenchment to figure out how to radicalize the courts and make them partisan vehicles. And man, was it a successful project or what? Anyway, I digress. Unwinding the civil and social progress of the 60s and 70s has been the sort of… You know, the organizing principle for several of the justices who are on the Supreme Court who came in age in the 80s and John Roberts was one of them, right? The voting rights act—

 

Melissa Murray: Sam Alito was one of them.

 

Alex Wagner: Exactly. Exactly. Clarence Thomas over at the EEOC. The dismantling of the Voting Rights Act has been, what do we call it, the golden chalice for conservatives. And the court is now taking up a case that is likely to dismantle section two of the voting rights act and sort of render it moot effectively. And I’m using legal terms, but I have no idea what the fuck I’m doing. And what it represents, I will just quote The Guardian, this case is part of a broad effort to not only reinterpret reconstruction era amendments, the constitutional amendments passed after the Civil War to ensure equal rights and due process, but also to weaponize them against democracy and civil rights. Its roots go back more than a century to the aftermath of the Civil war. Like let us be clear about the project at hand when we talk about Louisiana versus Callais, which is the VRA case that the Supreme Court has taken up, which has a sort of tortured history even in the recent past with this particular Supreme Court. Can you talk about that a little bit, Melissa?

 

Melissa Murray: I want to co-sign exactly what you said. This court has really been on one about the reconstruction amendments, which is to say that they’ve taken a very dim view about what the reconstruction amendments were meant to do and how they were supposed to work. And instead, we actually see the reconstruction amendments being weaponized against the actual goals of reconstruction. We saw this in Students for Fair Admissions versus Harvard. That was the affirmative action case from a couple of years ago where the court said, hey, guess what? That whole equal protection clause, it means you can never, ever, ever think of race in any context. You cannot do that. That is the actual definition of race discrimination. When these affirmative action programs were literally meant to remedy years in which people could not be admitted to institutions of higher education because they were either A, enslaved or Jim Crow prevented them from doing so, or just generally they were kept out because of quotas, whatnot. So that is a weaponization of that language against the very people who were intended to benefit from that. And you’re seeing the same kind of impulse in Louisiana versus Callais. Louisiana versus Callais concerns section two of the Voting Rights Act. The Voting rights act was enacted in 1965. It is landmark legislation meant to make good on the promises of the 14th amendment, equal protection clause and the 15th amendment which provided the franchise to African-American men. Also in the 19th Amendment from 1920s, women got to vote too. Black women really didn’t get to vote until the 1960s with the advent of the Voting Rights Act. This court has already hobbled the Votting Rights Act to a nub. So in 2013 in Shelby County versus Holder, the Chief Justice wrote a five to four opinion in which they invalidated the pre-clearance coverage formula of the voting rights act. That was a regime that required states with a history of voter suppression laws. To first pre-clear any changes that they made to their voting procedures or electoral procedures with the Department of Justice or three-judge court. The court invalidated that. So basically, now—

 

Alex Wagner: Well, because there was no racism back then.

 

Melissa Murray: Well, they were saying like everything had changed. There was a racial progress narrative.

 

Alex Wagner: Obama was president.

 

Melissa Murray: Did you notice there was a black president?

 

Alex Wagner: Eric Holder was the attorney general. No more racism.

 

Melissa Murray: Right. And so, I mean, they tell this sort of story of rosy progress. And you know, Justice Ginsburg, I think in one of the most epic lines ever, is like, yes. There’s been racial progress. Why? Because the pre-clearance formula exists. And throwing it out now is like throwing out your umbrella in a rainstorm because you’re not getting wet. Like morons.

 

Alex Wagner: I don’t need my antidepressants. I’m fine now. Like I feel great. [laughter]

 

Melissa Murray: Exactly. So that was the first thing. And when John Roberts was dismantling the preclearance formula, he kept saying, oh, there are lots of ways to challenge unlawful voter suppression laws. Like section two of the Voting Rights Act, you still have that. Yeah, it took them like five minutes before they got on how to start chipping away at the section two of the Voting Rights Act. And they started in a case called Brnovich versus DNC, where they made it a lot harder to bring section two challenges. Louisiana versus Kelly is yet another attempt to chip away at section two. So section two allows you to sue in circumstances where a state has violated or done something to dilute the power. Of the vote for certain groups or to limit the access to the ballot for certain groups in Louisiana and as in other places, they’ve allowed for what are known as majority minority coalition districts. So when they draw the congressional maps, the like the state legislature draws the maps, they can carve up the state in lots of different ways and often many states do things like they gerrymander. They try to consolidate partisan power in certain places. The Supreme Court has said that it’s totally fine for them to do it and federal courts have nothing to say about it if you want to challenge it, you have to go to a state court, you have figure that out, but you can’t do it on the basis of race, you can do racial gerrymandering. The problem, of course, is that in states in the South, the question of partisan affiliation and race often go very closely together, they’re hand in hand. What looks like a racial gerrymander could also be recharacterized as a partisan gerrymandered. And so when Louisiana drew up its maps, it created a single district, single majority minority district. It was challenged by Black voters who argued that the state’s Black population could actually support two majority minority districts where B lacks and other minority groups could come together to elect a candidate of their choice, optimize their opportunities to elect candidate of their choices. And two districts could be drawn based on the population of the state and where people were dispersed in the state. They made a new map with two majority minority districts and then that map was challenged on the ground that in drawing the new map with the two districts, the state had thought about race. And that was an impermissible racial gerrymander. Again, I’m gonna start off with the first map that was unfair and only made one district. They argued that, but we were only doing that on a partisan basis.

 

Alex Wagner: That’s not about race. That’s just about Republican. Never mind that most of the Republicans are white—

 

Melissa Murray: Well, and to be fair, in this new map, the second map that was drawn, it’s being challenged as a racial gerrymander. The state says that when they drew it, they were just trying to, they were actually doing things that advantaged the Republican party. They drew the map in such a way that Mike Johnson seat in Congress was preserved. So there is, again, this effort to weaponize the Reconstruction Amendments to say, anytime you’re thinking about race, you’re doing it wrong.

 

Alex Wagner: You’re being racist.

 

Melissa Murray: You’re being racist when in fact these were race conscious amendments intended to help the formerly enslaved come into the body politic and they recognize and the legislation that was enacted to enforce those provisions also recognized that even a hundred years later we were not making good on the promises of reconstruction and that’s why we needed the voting rights act so I mean it all seems a little too cute by half um you know anytime when you think about race. It’s you know you’ve discriminated against white voters when in fact these African American voters in a state like Louisiana which has an enormous African American population a state like Alabama with an enormous African American population they’re just trying to optimize the opportunities to elect someone who might be able to represent their interests.

 

Alex Wagner: I’d like to ask you sort of a big picture question here, which is the thing I think that illustrated for a lot of Americans the corruption of this court was the flying of insurrectionist flags over people’s beach homes, Sam Alito, the right-wing rumspringers funded by conservative fat cats. I’m seeing you, Clarence Thomas, on that. And there was a moment where it was like, okay, we see in their rulings how corrupted this, this. Justices are, how absolutely partisan they are, the ideological inconsistency of their rulings, which can only be explained away by a partisan agenda and also their own personal histories. And now the public can really just see in practical terms the way in which they’ve been co-opted by the hard right. And then all of that went away. And then like we stopped talking about all of it. There were no sort of like, there were no reforms made to the court.

 

Melissa Murray: Yeah.

 

Alex Wagner: I wonder But first of all, do you think that period of scrutiny on the court actually further radicalized some of the conservative justices and confirmed that, oh, I, the liberal media and the liberal firmament that has its tentacles and all kinds of the federal government aspects of the government, we must stop it? I mean, I wonder what you think the net effect of that is slash was and whether or any kind of reforms are ever possible.

 

Melissa Murray: So let me take this in a couple of different places and different layers. You’ve asked a big question. Was it worth it to really focus on the court in that moment?

 

Alex Wagner: Yes. Well, I think it was worth it. I just am wondering what. Whether or not we think there is a backlash to it.

 

Melissa Murray: I think certainly there may be, there may well be a backlash and I’ll get to that, but I will say it obviously matters that this happened. And to be clear, I don’t think it’s over. Like on Strict Scrutiny, the scrutiny continues strictly every single week. So we are on this hustle. We are watching this court. We are calling out the BS whenever we see it. Justice Jackson is calling out the BS when she sees it. Justice Kagan calls out the B.S. Justice Sotomayor calls out the BS. The cries are coming from inside the house. It’s actually accelerating. And I think it’s been accelerating with this particular administration. And so I don’t think it diminishing, I actually think it getting worse. I just think there’s so much going on that it’s hard to focus on the court when we’re literally watching a monarch slash autocrat take shape. So that might be part of the problem. It seems like. The attention on the court is diminished, but that’s because there’s just so much other stuff. It’s literally like being at a zoo where chimpanzees are flinging feces at each other.

 

Alex Wagner: And at us.

 

Melissa Murray: Right. It’s like, where do you look first? Where do you duck first? And so I just want to say that. I think people still get that there’s something not right about what the court is doing, that there’s some deeply partisan and that this court is captured. And I think that people understand that. I think the justices also recognize that they are being criticized and are a little sensitive to it. I mean, you know, Amy Coney Barrett wrote a book this year, went out on a book tour, and was in great pains to spin like completely fanciful justifications for what they were doing. And I have to say, like, if this is the explanation, girl, this ain’t it. I mean at one point she was saying, you know, like sometimes on the shadow docket, we just don’t really know what we’re trying to do. You know, so we sort of like, we leave things vague, because we’re not even really sure. I’m like, that’s not a great answer. Not a great for when you’re dismantling the Department of Education. I wasn’t sure exactly what constitutional provision fit here, so I made it as vague as possible, and I’ll get back to you.

 

Alex Wagner: Cool, cool, cool.

 

Melissa Murray: Right, like, so, you know, they clearly know that they have to explain themselves, and that people are watching, and that there have never been more eyes on the court than they are now. And I think the court is not immune from what happens outside of one first street or what’s happening in the world at large. So the tariff oral arguments took place right after the Democrats ran the table in that sort of amazing midterm election. And based on the tenor of that oral argument, I think it would be hard to say that the court wasn’t sort of picking up, like there’s a lot of real. Anger, antipathy around what the administration is doing, shock that this is what people are getting when all they wanted was for eggs to be less expensive, and now the nanny is in Honduras? Like what? Like, you know, people are being sent to CECOT, like that’s not what they signed up for. And I think the court is, you now, beginning to get hip to that, or I mean, it certainly seemed that way in the oral argument. And we focus on the Supreme Court. There are other courts here. There are lower federal courts, and they are doing the damn thing every single day.

 

Alex Wagner: Shout out to the rest of the federal judiciary. [laughter]

 

Melissa Murray: Not all of them. The Fifth Circuit still continues to be.

 

Alex Wagner: But you’re right, and we do shout out the lower courts when we can, but the craveness, the corruption, the collusion, only words begin with C, of the Supreme Court should not be ignored. This is why we have brilliant minds like you, Melissa Murray, to help us unpack the specifics and the ramifications. Melissa, thank you for taking time out of your, I’m sure, very busy holiday season to close out the year with us in spectacular—

 

Melissa Murray: It’s what we do on Strict Scrutiny, podcast about the Supreme Court.

 

Alex Wagner: This is what I meant about, like, in these dark, dark times, I do want to hear from you, not because you make it darker, but because you give me the light of knowledge.

 

Melissa Murray: Well, we love Runaway Country on Strict Scrutiny. We can’t wait to have you on the show, Alex.

 

Alex Wagner: I know nothing about the law.

 

Melissa Murray We can wait to interview you about your book. We’re so glad you’re at Crooked.

 

Alex Wagner: I’m so glad to be at Crooked. I’m thrilled that I get to see you over a Zoom, a Riverside recording connection with our respective podcasting mics. This is the way it was meant to be, girl.

 

Melissa Murray: Obviously. Let’s thank Brett and Clarence for making this possible. Cheers, fellas.

 

Alex Wagner: [laughs] Respect. Thank you for your time, sister. I will see you in the new year. One last note before we go, Runaway Country is gonna be dark next week and the following for the winter holidays when we will be tucked in a little rabbit hole drinking eggnog all day. We will be back with more great episodes in 2026. So in the meantime, don’t forget to check out the show and our amazing rapid response videos on our YouTube channel, Runaway Country with Alex Wagner. Thank you for listening and also thank you for a great year, even if it was kind of miserable. Runaway Country is a Crooked Media production. Our senior producer is Alyona Minkovski. Our producer is Emma Illick-Frank. Production support from Megan Larson and Lacy Roberts. The show is mixed and edited by Charlotte Landes. Ben Hethcoat is our video producer and Matt DeGroot is our head of production. Audio support comes from Kyle Seglin. Our theme music is by Breakmaster Cylinder. Adriene Hill is our Head of News and Politics. Katie Long is our Executive Producer of Development. Our production staff is proudly unionized with the Writer’s Guild of America East.

 

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