Transcript

Leah Litman (0:01)

Strict scrutiny is brought to you by Americans United for Separation of Church and State. We are all legal nerds here and we know that precedent set in any area of the law ripples out across our lives in so many ways. Our right to religious freedom is one of the most sacred areas of the law, protecting almost every aspect of our daily lives. Rights we all hold dear, like LGBTQ rights, freedom to choose the type of health care you need, and ensuring a well funded and inclusive public school system. Protecting the separation of church and state is in fact protecting the very foundation of our democracy. If you're looking for ways to more deeply understand the connection of and from religion to so many of the civil justice issues we see today, you should check out the Summit for Religious Freedom or Surf, an annual conference held in Washington, D.C. and virtually April 25th to the 27th, 2026 at Surf. Advocates, organizers, faith leaders, atheists, and everyone in between come together to take on the growing threats of Christian nationalism and the efforts to impose one narrow religious belief on us all. This is a movement for big change and collaboration across the entire spectrum of religious beliefs and non belief that strengthens our democracy, protects public schools, reproductive and LGBTQ rights, and more. Be part of the movement that's pushing back and standing up for freedom. Register to attend today@the srf.org bundle and.

Marty Lederman (1:22)

Safe with Expedia you were made to follow your favorite band and from the front row we were made to quietly save you. More Expedia made to travel Savings vary and subject to availability Flight inclusive packages packages are at all protected. Mr. Chief justice, please support it's an.

Leah Litman (1:43)

Old joke, but when I argue man argues against two beautiful ladies like this, they're going to have the last word. She spoke not elegantly, but with unmistakable clarity.

Marty Lederman (1:56)

She said, I ask no favor for my sex.

Melissa Murray (2:02)

All I ask of our brethren is that they take their feet off our necks.

Leah Litman (2:21)

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

Kate Shaw (2:28)

I'm Kate Shaw.

Melissa Murray (2:29)

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

Summary

Strict Scrutiny Podcast Summary

Episode Overview

Title: Debunking Trump’s Bullsh*t Legal Arguments for Invading Venezuela
Date: January 12, 2026
Hosts: Leah Litman, Kate Shaw, Melissa Murray
Special Guest: Marty Lederman (Professor of Practice, Georgetown Law; former DOJ OLC Deputy Assistant Attorney General)

Purpose:
This episode provides in-depth previews of major SCOTUS cases for January 2026—with particular focus on equal protection, Second Amendment, and executive power/removal cases. The second half, featuring expert Marty Lederman, robustly critiques the Trump administration's threadbare legal arguments for invading Venezuela, outlines the dangers of presidential overreach, and breaks down a pivotal Supreme Court ruling on National Guard deployment. The hosts also canvass recent legal news, from civil rights controversies to tragic ICE violence, offering both analysis and candid reaction.

Major Segments & Discussion Points

1. Supreme Court Case Previews (02:21-33:19)

A. Transgender Sports Bans: West Virginia v. BPJ and Little v. Hecox

Core Issue: Do the Equal Protection Clause or Title IX bar state laws that prohibit transgender girls/women from participating in girls/women’s school sports?
Recent Precedent: Justice Barrett's concurrence in United States v. Skrmetti signals openness to upholding anti-trans laws, even if facially discriminatory. Conservative justices show little sympathy for trans rights here.
West Virginia’s Argument: Claims “important governmental interest” in “fair and safe athletic opportunities for women." Uses biological essentialism: "Biological males outperform biological females in athletic competitions... which merely reflects biological reality." (Melissa Murray, 06:28)
Title IX Layer: Whether Bostock v. Clayton County’s reasoning (that anti-trans discrimination is sex discrimination under Title VII) should govern Title IX. Gorsuch was silent in oral arguments, making his vote pivotal.
Jurisdictional Twist: Plaintiff in Little v. Hecox sought voluntary dismissal citing personal hardship, raising mootness concerns for this case.
Key Watch Items: How Roberts and Gorsuch approach sex discrimination and Title IX; possibility that the Court may suggest anti-discrimination law requires discrimination against trans people—a move anticipated from Alito or Thomas. (Melissa Murray, 14:32)

B. Gun Rights & Property: Wolford v. Lopez

Issue: Challenges Hawaii law that presumptively bans concealed carry on public-access property unless expressly permitted by the owner.
Context: Bruen (2022) redefined Second Amendment scrutiny to historical analogues. Rahimi softened Bruen's harshness, as Court upheld a ban on domestic abusers having guns (even if historically unsupported).
Tension: The case pitches Second Amendment absolutism against private property rights and traditional federalism, testing whether property owners or gun carriers prevail.
Hosts’ Take: Expect conservative justices to wrestle with choosing between gun rights, federalism, and property autonomy. “Are they about amosexuality or aloha?” (Melissa Murray, 22:10)

C. Executive Power—Removal: Trump v. Cook

Issue: Can Trump unilaterally fire Federal Reserve Governor Lisa Cook (first Black woman on the Fed), supposedly for “cause,” based on old (and disputed) mortgage fraud allegations?
Legal Backdrop: Nearly a century of precedent (Humphrey’s Executor) upholds Congress’s power to restrict presidential removals to those with cause, usually meaning dereliction in office—not alleged pre-appointment misconduct.
Recent Supreme Court “Makeover”: The Court, especially via shadow docket, has recently undermined removal protections for heads of independent agencies, except—curiously—for the Fed “because the economy and 401ks.” (Leah Litman, 25:33)
Lower Court Ruling: Found the firing illegal; “cause” must relate to on-the-job conduct, and Cook lacked due process.
Stakes: If “cause” is whatever a president says, Fed independence is dead; repercussions could threaten the global economy. Even the Chamber of Commerce backs judicial scrutiny of cause.
Political Angle: Court may want to appear independent by siding against Trump, thereby satisfying “emotional support billionaires” and guarding institutional legitimacy. (Melissa Murray, 31:22)

D. Other Cases Briefly Noted

Chevron USA v. Plaquemines Parish, LA – Federal officer removal to federal court.
Galette v. NJ Transit Corp. – Whether entity is an arm of the state for immunity.
M&K Employee Solutions v. Trustees of IAM – Employer liability upon pension fund withdrawal.

2. Debunking Trump’s Legal Justifications for Invading Venezuela (37:23-52:08)

Expert Interview: Marty Lederman

OLC Memo Roots: Administration reportedly relies on a 1989 Barr OLC memo (first Bush admin), written to justify Panama’s Noriega operation. That memo rejected customary international law and treaty (UN Charter Art. 2(4)) restrictions on presidential uses of force abroad, arguing the President and Congress are not bound if the treaty is “non-self-executing.”
- “The Bar [Barr] memorandum does not say… the President can engage in full-scale military action to disable a government’s air force at the cost of dozens of lives…” (Marty Lederman, 45:51)
“Franken-memo” Doctrine: The Trump team welds fragments from past OLC memos to create an all-purpose legal rationale—“a use of force monster that now will justify these actions in Venezuela and possible Greenland, Cuba and Colombia.” (Melissa Murray, 46:55)
No Real Legal Basis: Even by the Barr memo’s dubious standards, running/coercing a foreign country or seizing control of government assets (e.g., oil) is not remotely justified.
Indifference to Law: The administration, as Lederman notes, “seem fairly indifferent to the law… very, very aggressive about finding so-called inherent authority, to do virtually anything the President wants.” (Marty Lederman, 50:11)

Presidential Power & War Powers Act

JD Vance Quote: "The War Powers Act is fundamentally a fake and unconstitutional law." (50:32)
Kate Shaw on Executive Rationales: “They're being very, very aggressive about finding so called inherent authority, authority to do virtually anything the President wants. Once Congress has given the President armed forces, right, like to do anything around the world…” (Marty Lederman, 51:00)

3. National Guard & Domestic Military Power: Trump v. Illinois (52:08-69:16)

Legal Background & SCOTUS Ruling

Statute in Question: 10 U.S.C. §12406 allows the President to “federalize” the National Guard only when “regular forces are insufficient.”
Trump Administration Argument: “Regular forces” means federal law enforcement like DHS/ICE.
Lederman’s (Winning) Amicus Theory: Historically and textually, “regular forces” refers to the U.S. military, not law enforcement agencies. The statute thus restricts the President from deploying the Guard domestically unless the military is insufficient and can lawfully act—a high bar given the Posse Comitatus Act.
Ruling: SCOTUS (6-3) agreed with Lederman. Major off-ramp: avoids calling Trump a liar, limits executive overreach, and blocks unilateral National Guard deployments. (Leah Litman, 60:26)
Kavanaugh Concurrence: Warns that closing off the Guard could tempt the administration to invoke the Insurrection Act to deploy the actual military domestically—normally highly restricted.

Military vs. Paramilitary Domestic Deployment

Comparison: Hosts note the military is trained not for routine domestic law enforcement, and is traditionally regarded as less of a rogue element than paramilitarized ICE/CBP forces.
Implication: Lederman observes militarized ICE may pose a bigger civil rights threat than even the National Guard, given current training, chain of command, and political freedom from restraint. (Kate Shaw, 83:01)

4. Legal News Roundup: ICE Violence and DOJ Civil Rights Zealotry (77:50-90:22)

A. ICE-Fueled Tragedy: Renee Goode Shooting

Incident: ICE fatally shot Renee Nicole Goode (a Minneapolis mother). Official claim of “terrorist assault” contradicted by video evidence—she was apparently just turning around her car.
Aftermath: Administration and right-wing media circulated lies; officers failed to administer aid, public schools closed for “safety.” ICE and CBP also shot and wounded protestors elsewhere.
Reaction: Hosts highlight public protest, community vigils, and open resistance, calling out rising normalization of paramilitary violence.
- “There is now this armed militia that has been unleashed on the country committing human rights violations... If you're a woman, a Democrat, you live in a blue state, you are engaged in exercising your constitutional rights, it's your fault.” (Leah Litman, 80:38)

B. Mahmoud v. Taylor Fallout

Supreme Court Decision: Recognizes a constitutional right of parents to opt out of public school instruction, even innocuous LGBTQ-affirming storybooks.
Ramifications: Used by parents to challenge books like Families, Families, Families, fueling backlash against basic LGBTQ inclusion. (Melissa Murray, 86:38)

C. Civil Rights Division Drama: Harmeet Dhillon Calls Critics “Hoes”

Context: Far-right influencers jab the new Assistant Attorney General for Civil Rights for not prosecuting enough 1/6 investigators.
Her Response on X: “You are hoes. Learn an honest profession.” (Melissa Murray, 89:10)
Hosts’ Reaction: “I never thought I would see the day when the Assistant Attorney General for Civil Rights would get on social media and call people hoes.” (Melissa Murray, 89:35)

D. SCOTUS Habeas Decision: Bowie v. United States

Holding: The restrictions on successive petitions under the AEDPA (which apply to state prisoners) do not bind federal prisoners. The Court sides with textualism over expanding limits—a rare, positively received opinion. (Leah Litman, 92:22)

E. Trump New York Times Interview Revelations

On Presidential Limits: “Yeah, there is one thing. My own morality, my own mind. It's the only thing that can stop me.” (Leah Litman quoting Trump, 97:00)
On International Law: “I do. But… it depends what your definition of international law is.” (Kate Shaw, 97:11)
On Invading/Purchasing Greenland: “Because that's what I feel is psychologically needed for success.” (Melissa Murray quoting Trump, 98:05)

Notable Quotes & Moments

On OLC’s Venezuela Memo:
"The Bar [Barr] memorandum does not say… when the FBI goes into another country to arrest someone extraterritorially, the Department of Defense can engage in a full scale action to disable that nation’s air force…"
(Marty Lederman, 45:51)
On Executive Power and Lawlessness:
"They're being very, very aggressive about finding so called inherent authority, authority to do virtually anything the President wants..."
(Marty Lederman, 51:00)
On Supreme Court’s Regulatory Move:
“Strict scrutiny, the best standard, as we often say, to strike down the restriction.”
(Leah Litman, 92:56 – on Wyoming abortion ban)
On Modern Paramilitary Threat:
"…ICE and CBP and all of these DHS components… are acting as a, this paramilitary force that is just a truly terrifying presence in cities…"
(Kate Shaw, 83:01)
On Judicial Image-Management:
"This case is basically going to force the court to determine who it likes more. Do they like Donald Trump more than they like their emotional support billionaires?"
(Melissa Murray, 31:22)
On Fed Independence Stakes:
"If the President can just Trump up and invent cause, then he’s not actually limited in his ability to fire members of the Fed… there goes the independence of the Fed."
(Leah Litman, 28:15)

Timestamps for Key Segments

Case Previews Begin: 02:21
Discussion of West Virginia v. BPJ / Hecox: 04:02-15:24
Wolford v. Lopez (Second Amendment): 15:24-23:08
Trump v. Cook (Fed Removal; Executive Power): 23:08-33:19
Venezuela Invasion Legal Analysis (w/ Marty Lederman): 37:23-52:08
National Guard / Trump v. Illinois: 52:08-69:16
Dissents, Shadow Docket, and Kev Concurrence Snark: 69:16-77:50
ICE Violence / Renee Goode: 77:50-86:38
Mahmoud Case Fallout: 86:38-88:02
Civil Rights Division's “Hoes” Moment: 88:02-90:22
Trump NYT Interview (Morality & Greenland): 97:00-99:25

Tone & Style

Irreverent, candid, deeply informed—the hosts blend black-letter law with wit, biting critiques, and frequent pop-culture references. Their frustration with legal regression is palpable, and memorable asides abound: “Strict scrutiny, the best standard, as we often say, to strike down the restriction,” “amosexuals,” and the running banter about “psychological needs” and “hoes.”

TL;DR

This episode rigorously dissects upcoming SCOTUS big-ticket cases, shreds the administration’s legal justifications for Venezuela’s invasion (with Marty Lederman’s expert insight), and documents the relentless erosion of legal checks on presidential power and civil liberties—from ICE violence to the marginalization of LGBTQ school kids. Expect laughter through the tears, with a heavy dose of sharp legal reasoning and gamer-level shade toward executive and judicial malfeasance.