Strict Scrutiny Podcast Summary
Episode: A Blockbuster Non-Opinion and a Fascism Grab Bag
Release Date: May 26, 2025
Host/Authors: Leah Litman, Kate Shaw, Melissa Murray
Production: Crooked Media

I. Introduction

In this episode of Strict Scrutiny, the hosts—Leah Litman, Kate Shaw, and Melissa Murray—delve into recent developments surrounding the United States Supreme Court (SCOTUS), lower court decisions, and the broader legal and political landscape. The discussion is both in-depth and accessible, providing listeners with a comprehensive understanding of complex legal issues and their implications on daily life.

II. SCOTUS Opinions and Non-Opinions

A. Oklahoma Charter School Case (St. Isidore's Case)

Timestamp: [02:22] – [06:00]

The episode kicks off with a discussion on a significant SCOTUS decision regarding the Oklahoma Charter School Case involving St. Isidore's, a religious charter school. The Supreme Court issued a one-sentence per curiam opinion, resulting in a 4-4 split among the justices. This tie means that the lower court's judgment—favoring religious charter schools—is affirmed without setting a new precedent.

• Melissa Murray explains, “Oklahoma is not required to create the religious public charter school as St. Isidore’s wanted” ([03:58]).

• Leah Litman expresses concern over the narrow victory, noting, “We do live in the grimmest timeline when a tie is portrayed as a win” ([05:39]).

The tie decision highlights the Republican justices' willingness to potentially mandate states to establish religious public charter schools alongside secular ones, raising alarms about the future of church-state separation.

B. Kisis vs. United States

Timestamp: [07:00] – [08:25]

The hosts also discuss Kisis vs. United States, a case addressing whether the federal government can prosecute fraud in situations where a contractor's non-performance didn't result in economic loss. Justice Barrett authored the opinion, allowing for federal fraud convictions even without economic harm, underscoring the Court's stance on upholding fraud charges under specific pretenses.

• Melissa Murray states, “Justice Barrett recused herself. She gave no reasons for her recusal” ([03:58]).

III. Immigration News

A. Cato Institute Study on Venezuelan Men

Timestamp: [09:23] – [12:01]

The podcast highlights a Cato Institute study revealing that over 200 Venezuelan men were extradited to SEACOT in El Salvador under the Alien Enemies Act. Notably, 50 of these individuals entered the U.S. lawfully and had no immigration violations.

• Melissa Murray emphasizes the gravity: “...the government snatching people off the street... seems like the kind of thing liberals and progressives and libertarians should be able to find common cause” ([09:23]).

B. Case of Christian

Timestamp: [12:01] – [14:46]

The hosts discuss a Fourth Circuit case involving a man named Christian, who was ordered by a district court to be returned to the U.S. under the Alien Enemies Act. The court's decision faced dissent from Judge Julius Richardson, a Trump appointee, who argued against forced negotiations with foreign states.

• Leah Litman shares a notable quote from the Fourth Circuit opinion: “...the government has no response to this charge. A deafening silence” ([10:32]).

C. Fifth Circuit Developments: AARP vs. Trump

Timestamp: [14:46] – [16:11]

The Fifth Circuit addresses AARP vs. Trump, focusing on due process for individuals subjected to the Alien Enemies Act. Judge Jim Ho expressed strong support for the administration, critiquing the judiciary’s role in regulating executive actions.

• Melissa Murray captures the disdainful tone: “Judge Ho… is defending Lady Justice's honor” ([14:46]).

IV. Fascism Grab Bag

Timestamp: [27:06] – [32:38]

This segment covers a range of issues illustrating the administration's efforts to criminalize political opposition and retaliate against institutions and individuals dissenting from their agenda.

A. Charges Against Representative Lamonica McIver

Timestamp: [27:06] – [29:46]

Interim U.S. Attorney Alina Haba has filed assault charges against Representative Lamonica McIver for allegedly assaulting a federal law enforcement officer—a claim contradicted by video evidence showing no such actions.

• Leah Litman remarks, “...she’s not assaulting an ICE officer. She’s just not” ([29:35]).

B. Investigation into Andrew Cuomo

Timestamp: [29:46] – [31:07]

The DOJ is investigating Andrew Cuomo for alleged lies to Congress regarding New York's COVID-19 response, potentially impacting his mayoral aspirations.

C. Actions Against Harvard

Timestamp: [31:07] – [32:38]

In a move perceived as retaliation, the administration has halted Harvard's enrollment of international students, aiming to financially strain the institution for opposing Trump’s policies.

• Leah Litman criticizes, “…because they are a huge portion of the student body… an effort to starve the schools financially” ([32:38]).

V. Sex, Gender, and Bodily Autonomy

Timestamp: [33:24] – [38:13]

The hosts examine recent SCOTUS decisions and lower court rulings affecting gender identity and reproductive rights.

A. Libby vs. Fecto

Timestamp: [33:24] – [34:17]

The Supreme Court issued an injunction preventing the Maine legislature from censuring a legislator for anti-trans speech, raising concerns about judicial overreach and the lack of explanations for the injunction.

• Melissa Murray expresses frustration: “It’s really deeply troubling that the Supreme Court issued this injunction... didn't really explain why” ([34:17]).

B. Amarillo, Texas: Title VII and Transgender Protections

Timestamp: [34:17] – [38:13]

Judge Matthew Kaczmark ruled that Title VII does not protect transgender individuals from discrimination, effectively stripping legal recognition and protections.

• Leah Litman summarizes, “…trans people don’t really exist at all” ([37:15]).
• Melissa Murray highlights the problematic ruling: “Title seven does not bar workplace employment policies that protect inherent differences between men and women” ([35:44]).

VI. Civil Rights and Reproductive Freedom

Timestamp: [38:13] – [40:07]

A. Adriana Smith Case

Timestamp: [38:13] – [40:07]

Adriana Smith, a brain-dead pregnant woman in Georgia, remains on life support to allow fetal development, a decision mandated by the state’s restrictive abortion laws despite her family's objections.

• Leah Litman comments, “...we are seeing it play out” ([40:07]).

VII. Gun Rights and DOJ Policies

Timestamp: [40:07] – [43:27]

A. Forced Reset Triggers

Timestamp: [40:39] – [41:40]

The DOJ has permitted the sale of forced reset triggers, devices that enable rapid-fire bursts from semi-automatic weapons, likened to military automatic rifles.

• Leah Litman notes the expansion: “...forcing federal law could not prohibit forced reset triggers because they're protected by the Second Amendment” ([40:54]).

B. Settlements and Gun Control

Timestamp: [41:39] – [43:27]

As part of a settlement, thousands of seized forced reset triggers must be returned to their owners, raising concerns about public safety and gun regulation.

VIII. Campaign Finance and Judicial Nominations

Timestamp: [43:27] – [50:35]

A. Campaign Finance Regulation

Timestamp: [43:27] – [44:40]

The Solicitor General announced that the U.S. will not defend a federal law limiting political party expenditures, dismissing concerns about the influence of dark money in politics.

• Melissa Murray sarcastically remarks, “…billionaires do not have enough influence” ([44:40]).

B. Judicial Nominations: Emile Beauvais

Timestamp: [44:40] – [45:38]

Emile Beauvais is being considered for a judgeship on the Third Circuit, despite his involvement in controversial immigration enforcement and pressure on prosecutors to support administration policies.

• Leah Litman criticizes, “This guy definitely sounds like he should be a judge” ([45:00]).

IX. Misstatements and Misinformation

Timestamp: [47:27] – [52:00]

A. Kristi Noem’s Senate Appearance

Timestamp: [47:27] – [52:00]

Governor Kristi Noem incorrectly defined habeas corpus during her Senate hearing, prompting the hosts to create a humorous TikTok response addressing her misinformation.

• Leah Litman showcases the error: “...habeas corpus is a constitutional right that the president has to be able to remove people from this country to suspend their rights. Let me stop, ma'am. Habeas corpus. Excuse me, that's incorrect” ([47:27]).

X. Conversation with Professor Noah Rosenblum

Timestamp: [56:24] – [77:24]

In an extended segment, Professor Noah Rosenblum of NYU discusses a landmark Supreme Court decision that could significantly alter the balance of power between the presidency and independent agencies.

A. Case Overview: Presidential Removal Power

Timestamp: [56:41] – [60:57]

The case in question involves President Trump attempting to fire commissioners from the National Labor Relations Board and the Merit Service Protections Board, despite statutory protections against such actions. The Supreme Court's short order suggests they may side with the President, potentially undermining long-standing precedents like Humphrey's Executor.

• Noah Rosenblum explains, “...the Supreme Court claims that it's not ruling on the merits, but it is likely that the President will succeed in his challenge” ([57:02]).

B. Implications for the Administrative State

Timestamp: [61:00] – [68:13]

Rosenblum elaborates on how this decision could dismantle the independence of federal agencies, effectively allowing Presidents to exert greater control over regulatory bodies. This shift threatens the integrity of institutions designed to operate without executive interference, potentially leading to a return to the spoils system.

• Leah Litman underscores the risk: “...the whole idea of the civil service reform laws in the 1970s... will now no longer be protected” ([65:09]).

C. Exception for the Federal Reserve

Timestamp: [68:13] – [75:17]

Despite the sweeping changes, the Court carves out an exception for the Federal Reserve, arguing its unique historical role justifies its continued independence. Rosenblum critiques this “bespoke exception,” questioning its legal and historical foundations.

• Leah Litman remarks, “...it's unconstitutional based on their whole new theory of constitutional law and presidential power” ([68:45]).

XI. Closing Remarks and Light Farewell

The episode concludes with the hosts sharing personal reading recommendations, celebrating Leah Litman’s New York Times bestseller achievement, and offering congratulations to law school graduates. They emphasize the importance of legal professionals in safeguarding the rule of law amid a turbulent political climate.

• Melissa Murray celebrates Leah's success: “...we are extremely proud of you and happy for you” ([83:59]).

XII. Key Takeaways

• SCOTUS’s 4-4 Tie in the Oklahoma Charter School case upholds the position against mandatory religious public charter schools without setting new precedent.

• Kisis vs. United States signifies the Court’s stance on federal fraud prosecutions without economic loss implications.

• Immigration Policies under scrutiny with controversial rugged enforcement of the Alien Enemies Act and jeopardized TPS protections for Venezuelans.

• Fascism Grab Bag highlights the administration’s tactics to suppress political opposition through legal charges and institutional retaliation.

• Gender and Civil Rights face setbacks with rulings undermining protections for transgender individuals and challenging reproductive autonomy.

• Gun Rights Expansion through DOJ’s approval of forced reset triggers, paralleling previous rulings on bump stocks.

• Judicial Appointments and Campaign Finance reflect the administration’s broader efforts to reshape legal and political frameworks.

• Supreme Court’s Shift in Agency Independence threatens the insulating mechanisms safeguarding federal agencies from presidential control, potentially heralding a return to the spoils system.

This episode of Strict Scrutiny offers a critical examination of the evolving judicial and political dynamics in the United States, emphasizing the profound implications these changes hold for democracy, civil rights, and the rule of law.