Strict Scrutiny

Episode: Can America Pull Back From the Brink of Autocracy?
Date: January 5, 2026
Hosts: Leah Litman, Kate Shaw, Melissa Murray
Guests: Rebecca "Beck" Ingber (Cardozo Law), Kim Lane Scheppele (Princeton), Sky Perryman (Democracy Forward), Josh Orton (Demand Justice)

Overview

This episode tackles the alarming escalation of autocratic actions in the U.S.—with particular attention to the Trump administration’s recent military intervention in Venezuela and the legal, constitutional, and political implications. The hosts bring in top experts to analyze the use of law and courts to enable autocracy, the Senate’s complicity in judicial nominations, and activist responses fighting to uphold democracy.

The discussion is deeply informed, urgent, and direct, emphasizing both the systematic dismantling of democratic guardrails and the hope that ongoing resistance—legal and popular—can slow, and perhaps reverse, this march toward autocracy.

Key Segments & Insights

1. Breaking: The U.S. Invasion of Venezuela

[01:41–18:29]

Summary

Leah Littman and Rebecca "Beck" Ingber dissect President Trump's shocking announcement of a military invasion into Venezuela, kidnapping President Nicolas Maduro and his wife, and flying them to the U.S. for prosecution.

Legal Analysis Highlights

• No Legal Authority—International or Domestic

  • Beck Ingber [04:18]: “Yeah, there’s no legal authority for the strike. It’s a violation of both international law and domestic constitutional separation of powers.”
  • UN Charter violations: Use of military force without Security Council resolution or self-defense.
  • Domestic law: Only Congress can declare war; president cannot unilaterally order such an operation.

• Administration’s Gaslighting & Goalpost Shifting

  • Sen. Mike Lee (as recounted by Ingber) [04:52]: Calls the operation a “law enforcement action to execute a warrant,” stretching Article II powers beyond recognition.
  • Self-defense rationale is circular, since the case for “protecting U.S. personnel” only arises because the U.S. created the situation.

• Jurisdictional Gymnastics

  • Courts likely to hear the criminal case against Maduro but ignore how he was brought into the country. Head of state immunity could be negated if the U.S. president withdraws recognition.

Memorable Moment

Leah Littman [15:03] (Trump quote):
“We in the United States are making that decision.”
Leah [15:20]: “Once again, utter contempt for democracy, law, et cetera.”

Big Picture

• Beck Ingber [17:13]: Urges listeners to “continuously make noise” in the face of normalized lawlessness, as both public and congressional outrage are essential to maintaining any constitutional barriers.

2. Autocratic Legalism: How Democracies Become Autocracies

[22:05–50:14]

Guest: Kim Lane Scheppele, comparative law scholar

Core Concepts

• Autocratic Legalism Defined
  Democracies are often eroded not by coups, but through legal means: “They entrench themselves in power forever…by loosening restraints on the executive branch. And a big part of that is also capturing usually the highest court in the country.” [Kim, 24:52]

  • Captured courts maintain an appearance of legitimacy by sometimes ruling against the executive in non-essential matters, while always supporting moves that increase presidential power.

• Court Packing, Procedural Irregularity & Shadow Docket

  • The court-packing tactics seen under Trump (three nominations under irregular circumstances) mirror autocratic playbooks from Hungary and Russia.
  • The shift to “shadow dockets”—making major decisions through emergency orders without explanation—limits remedies for those harmed and cloaks radical changes in law.

• Cherry-Picking “Independence”

  • “All the crucial things that have to do with executive power…everything will go in favor of the aspirational autocrat…. [But] you’ll see, for example, some rights cases that may not be so crucial…and those might actually be the ones that the Court picks to say, ‘Look how independent we are.’” [Kim, 24:52]

Notable Quotes

• “It’s almost as if the executive walks with one foot and the court walks with the other, and they’re paying attention to the gait.” – Kim Lane Scheppele [32:49]

• On the Supreme Court:

  • “We have a court that is continuing to simply vote Republican on all the cases that are crucial to the consolidation of executive power.” [Kim, 38:50]

• “They’re breadcrumbers. It’s just like bad boyfriends, right?” – Leah & Kim, on the Court’s occasional “good” rulings [38:55]

Concrete Warnings

• Pullbacks are hard: Even where democracies have reversed autocratic trends (Brazil, Poland), institutions remain weakened, and pro-autocracy loyalists “burrow in.”
• U.S. largely missed its chance to “idiot-proof” institutions before the current crisis; recovery will not restore the status quo but must aim to “build back better” [47:13].

Recommendations

Kim recommends inspirational and sobering readings, including Gerald Postema’s The Rule of Law in Times of Peril and Ernst Frankl’s The Dual State, for understanding how legal norms can be hollowed out even as the system appears “normal.” [50:14]

3. Fighting Back: Legal Activism & Resistance

[57:57–78:28]

Guest: Sky Perryman, Democracy Forward

2025–2026’s “Legal Grinch” Moves

• Slashing funding for community schools and early childhood health programs (including targeted actions against Somali American communities in Minnesota).
• Censoring or retaliating against professional societies (e.g., American Academy of Pediatrics) critical of administration policy.
• Banning abortion and counseling at VA facilities over public opposition.
• Attempting to unilaterally rename the JFK Center for the Performing Arts.

Sky’s View:

• “We have to not just hold our government accountable and this president and administration accountable, we have to hold accountable the institutions that are aiding and abetting…” [63:35]

Resistance & Hope

• Mass Legal Challenges: Over 500 legal challenges filed in 2025, with the majority resulting in restraint of the administration’s more radical proposals.
• Power in Numbers: “The number one power that an autocratic actor has…is convincing people that they don’t have power. And we have to defy that every single day and show up and be in resistance to that.” [74:45]
• Accountability Beyond Politicians: Focus shifting to companies and social institutions complicit in rights violations.

4. Radical Judicial Nominations & Senate Complicity

[81:08–100:24]

Guest: Josh Orton, Demand Justice

Main Points

• Even More Extreme Nominees:

  • New Trump-term nominees refused to affirm the reality of the 2020 election or discuss January 6th honestly—an explicit “loyalty test.”
  • Many could not affirm Brown v. Board of Education as rightly decided or dodged questions about rights to marriage equality and reproductive autonomy.

• Senate Democrats’ Bipartisanship Fetish:

  • Eighteen Democratic senators have voted for these radical nominees, often for cynical reasons (bipartisanship optics, log-rolling); this will not age well.
  • Josh: “Imagine…30 years ago if a federal nominee…was unwilling to say [Timothy McVeigh] bombed the federal building…they would not survive a hearing.” [96:24]

• Confirmation Hearings as Societal Messaging

  • By not pressing nominees on these foundational truths, Senate Democrats inadvertently normalize extreme political positions.

• Danger of Institutional Passivity:

  • “They need to accept the premise that these have been politicized and…to stand their moral ground to vote against them.” [100:24]

Notable Quotes (with Timestamps)

• Beck Ingber [04:18]: “There’s no legal authority for the strike. It’s a violation of both international law and domestic constitutional separation of powers.”
• Kim Lane Scheppele [24:52]: “They do so by loosening restraints on the executive branch. And a big part of that is also capturing usually the highest court in the country.”
• Kim [38:50]: “We have a court that is continuing to simply vote Republican on all the cases that are crucial to the consolidation of executive power.”
• Sky Perryman [63:35]: “We have to…hold accountable the institutions that are aiding and abetting this president and this administration, including that infrastructure…whether…social media or…companies.”
• Josh Orton [91:28]: “If one of these nominees was asked point blank in an open hearing, did Donald Trump lose the 2020 election? …if they said yes…I don’t think anyone disagrees that their nomination would be pulled within hours.”

Flow & Tone

The episode is candid, incisive, and at times darkly humorous, refusing to offer false comfort but emphasizing solidarity, awareness, and collective agency. Each expert pulls back the curtain on different facets of America’s slide toward autocracy—asserting that only a vigilant, organized, and relentless populace can avert or reverse democratic collapse.

Takeaways

• Autocracy arrives through the law, often subtly and procedurally—but with disastrous effects on real people and institutions.
• Courts are not necessarily bulwarks against tyranny; they can be conquered, manipulated, and weaponized for autocratic ends.
• Congressional and social complicity, including nostalgia for “bipartisanship,” enables authoritarians.
• Popular resistance—especially lawsuits, public advocacy, and holding enablers accountable—remains critical.
• The struggle is grim but not futile: “The greatest trick the autocrat pulls is convincing you that you don’t matter.” Your voice and action do matter.

For listeners hungry for the long view, read Postema’s “The Rule of Law in Times of Peril,” and Frankl’s “The Dual State.” For the short-term, stay vigilant, get loud, and keep fighting for democracy—both inside and outside the courtroom.