Debunking Trump’s Bullsh*t Legal Arguments for Invading Venezuela

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.

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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.

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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)

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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)

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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)

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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)

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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

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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.”

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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.

Transcript

[Leah Litman]

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]

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]

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]

She said, I ask no favor for my sex.

[Melissa Murray]

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

[Leah Litman]

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

[Kate Shaw]

I'm Kate Shaw.

[Melissa Murray]

And I'm Melissa Murray. And this is your first regular episode of 2026 the New Year. And here's what we have in store for you. First, we'll be previewing the cases the Court will hear in its first sitting of 2026. And then we are going to chat about the array of legal news that happened over the last couple of weeks as the old year ended and the new 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.

[Kate Shaw]

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

[Leah Litman]

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

[Kate Shaw]

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

[Melissa Murray]

For now.

[Kate Shaw]

I did set you up for that for now.

[Melissa Murray]

I don't know, anything could happen in this case. But let me just sort of lay out where West Virginia is. West Virginia says that it easily satisfies the requirements for intermediate scrutiny. And to be very clear, it is arguing that the intermediate scrutiny standard allows states to discriminate on the basis of sex when the sex based classification is substantially related to an important governmental interest. And here West Virginia argues that it has an important governmental interest in, quote, ensuring fair and safe athletic opportunities for women. It also argues that the fourth Circuit ratcheted up the requirements for intermediate scrutiny when that court heard this case on appeal from the district district court. So West Virginia knows the true meaning of intermediate scrutiny. The Judges of the 4th Circuit, not so much now in making the case that it has discriminated on the basis of sex, but only in order to preserve fair and safe athletic opportunities for women. West Virginia maintains that, quote, biological males outperform biological females in athletic competitions. It then goes on to say that, quote, acknowledging this difference isn't a statement, stereotype or an over broad generalization about the differences between men and women. Instead, it merely, quote, reflects biological reality. This is all to say that the briefs on behalf of the state in these cases are overflowing with biology. In addition to what I think is pretty explicit protectionism logic that seems to hearken back not to the current or extant sex equality jurisprudence that this court has offered since 1973 and forward, but rather goes back all the way to, I don't know, Mueller versus Oregon in 1908, when the Supreme Court essentially blessed sex differentiated laws on the view that it was necessary to protect women from everything. And again, because there are no new ideas, we should note that this kind of protectionist logic that used to be in Vogue in 1908 is now coming back in the form of a series of executive orders that this administration has promulgated that essentially repackage this protectionist logic for a modern day audience. And in case you think I'm just spouting here, I am. But I'm spouting from a paper that Kate and I recently wrote and that will be forthcoming in the Supreme Court review. It's called Skretti and the Looming Sex Equality Realignment or the coming. Is it coming or looming? I don't know. Either way, it's on the way.

[Kate Shaw]

Maybe we should call it looming. It sounds more ominous than it is. Okay, all right. Well, we'll think about that.

[Leah Litman]

Both the shift and also caused our fourth Laura Loomers RV in your pants, which you know is related to biology.

[Kate Shaw]

So I don't want anyone, I don't want to call that to mind for anyone, Leah. So maybe now we should just Looming.

[Melissa Murray]

Loomers misalignment, all of it.

[Marty Lederman]

Oh, no, no.

[Melissa Murray]

All right, all right.

[Kate Shaw]

Arby's in your focus, people.

[Melissa Murray]

Okay, okay.

[Kate Shaw]

That will be the sequel. But back to the cases pending before the court. So Melissa was just walking through the equal protection argument, and we should also that just in the constitutional register, the plaintiffs also make a separate argument that, you know, discrimination on the basis of gender identity or transgender status also draws heightened scrutiny in addition to the laws at issue representing sex classifications that already under existing doctrine, warrant heightened scrutiny. But that's the sort of the constitutional aspect of the cases. An important and distinct question, at least in BPJ, is whether these laws may violate Title 9, the Prohibition on sex discrimination in education. So in the court's 2020 decision in Bostock vs Clayton county, the court said listeners will probably recall that Title 7, the Prohibition on sex discrimination in employment, did prohibit discrimination on the basis of gender identity that was in addition to sexual orientation, although that's not at issue here. Now, the Two laws, Title 7, at issue in Bostock, Title 9 at issue here, are not worded identically. Title 9 says, quote, no person in the United States shall, on the basis of sex be excluded from participation in, be denied the benefits of or be subjected to discrimination under any education program or activity receiving federal financial assistance. Title 7, by contrast, says it is, quote, unlawful, quote, for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual because of such individuals sex in addition to other characteristics.

[Melissa Murray]

All right, so this is all to say that these two laws are not identically worded, but the key phrases on the basis of sex in Title nine and because of sex in Title seven are pretty close. Right? So a key question in this case is what is a majority of this Court going to do about its Title 7 decision in Bostock, which it basically disregarded in its disposition of Scarmetti. Now, of course, Skremtti was a constitutional case, and these cases raise both statutory and constitutional issues. But that just means that the Court can't simply ig Bostock here. It will have to decide what it's going to do about Bostock as a relevant precedent, at least in the context of Title ix. Now, Justice Gorsuch authored Bostic, and the Chief justice actually joined that opinion alongside the Court's democratic appointees. If Bostick controls, then the athletes in these cases could win on statutory grounds. But the Court could also decide that there are enough textual differences between Title IX and Title VII to that they don't actually line up and Bostock isn't relevant. Or it could focus on the distinctions between the employment context on the one hand and the educational or athletic context on the other and read Bostock out of the equation entirely. For that reason, listeners, you should also remember that in the oral argument in Scarmetti, Justice Gorsuch, who ordinarily loves to weigh in on everything, was uncharacteristically silent. So all eyes, I think, again, will be on him and what he has to say about decision in this context.

[Leah Litman]

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

[Kate Shaw]

No, I really was struck by how kind of front and center that alleged kind of litigation misconduct was in the BPJ brief. So I am very curious whether it's actually going to be surfaced in the oral argument, but sort of in addition to that, which is kind of ancillary to the substantive legal questions in the case, there are some genuine jurisdictional wrinkles here. So Lindsay Hecox, who is one of the challengers, actually sought to voluntarily dism her claims with prejudice against the defendants in the district court. That could mean her case is mood, although so far the courts have not granted her request to dismiss her case. Now why did she voluntarily seek to dismiss her claims? Well, she tried out for her colleges, NCAA cross country and track teams, but she actually didn't make either team. So she just participated in club soccer. But she also noted that her decision to voluntarily dismiss was prompted in part by personal challenges, including those arising from the public scrutiny that she has faced in this case. She is concerned about her ability to finish school and graduate amids all the public interest in the case. And so she decided to permanently withdraw and refrain from playing any women's sports. If you're a parent, you have kids who play sports like that is just so heartbreaking. Or if you're somebody who has played a sport like this is pretty central to growth, development, socialization, like, you know, all kinds of life skill development, emotional.

[Leah Litman]

Well being, mental well being, physical well being, like.

[Kate Shaw]

So, yeah, the list goes on. So that is pretty devastating. And the court has deferred this question of whether to dismiss the case as moot. But I think it's at least possible that it will take that off ramp, at least with respect to the Hecox case.

[Melissa Murray]

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

[Leah Litman]

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

[Melissa Murray]

Yeah, so remember, it's the anti. Anti discrimination law.

[Leah Litman]

We've got to worry about it too.

[Kate Shaw]

Yeah. Okay.

[Marty Lederman]

This is the.

[Kate Shaw]

You've come a long way, baby.

[Leah Litman]

Right.

[Melissa Murray]

All right, so big case to watch for. Another case that the court will hear this week is Wolford versus Lopez. And it is A Second Amendment case. Get ready. Amosexuals. It's time. Pew, Pew. Pew.

[Leah Litman]

Okay, listeners, you're not watching this on YouTube. You're missing out.

[Melissa Murray]

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

[Kate Shaw]

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

[Melissa Murray]

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

[Leah Litman]

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

[Melissa Murray]

So, again, I don't want to keep harping on the amosexuality here, but I think it is really relevant and. And I'm really interested to see how this plays out in oral argument. So I want to propose for all the stricties out there in the podcasting universe, I think we should play a little drinking game during oral argument. Every time an advocate or one of the justices invokes racial justice as a reason to extend or expand the Second Amendment and give everyone a gun. I want you to take a drink.

[Leah Litman]

My tires are not that high.

[Kate Shaw]

The limit does not exist. Right. All right.

[Melissa Murray]

I won't even. I had others that you could drink, but, like, maybe we'll just leave it with Rachel.

[Leah Litman]

That one would do me in.

[Melissa Murray]

Okay, well, according to Leah, you will be sauced by noon, so clear your calendars. We're gonna have a Eastern.

[Marty Lederman]

Aren't these.

[Kate Shaw]

Don't these arguments start at seven on the. On the West Coast?

[Leah Litman]

Oh, this could be early day.

[Melissa Murray]

That's when you then get online and buy your tickets for the Herbs Theater or the Palace Theater for our live show.

[Kate Shaw]

God, you were good, Melissa.

[Melissa Murray]

So good.

[Kate Shaw]

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

[Melissa Murray]

Yeah, I'm going to watch to see how the conservatives basically rip themselves apart just like tie themselves in knots trying to figure out this.

[Leah Litman]

I mean we saw how difficult it was for them to like criticize Justice Scalia. Right. And try to do law. Right. It's really hard for them to walk and chew, guys.

[Melissa Murray]

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

[Leah Litman]

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

[Melissa Murray]

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

[Kate Shaw]

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

[Leah Litman]

So basically all agencies and commissions except the Court maintained the Federal Reserve Board in a.

[Melissa Murray]

What's that I hear right? Is it the sound of investment accounts increasing? I'm sorry, what's going on?

[Kate Shaw]

Like a ching ching? We like have a cash register sound effect.

[Leah Litman]

So in a cursory passage in that shadow docket order, the Court suggested that Congress could restrict the President's power to remove Federal Reserve governors only to cases where the President has cause for the removal. Because the Court infamously said, quote, the Federal Reserve is a uniquely structured quasi private entity that follows in the distinct historical tradition of the first and Second Banks of the United States.

[Melissa Murray]

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

[Kate Shaw]

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

[Leah Litman]

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

[Kate Shaw]

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

[Melissa Murray]

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

[Kate Shaw]

Okay, just a couple others to quickly mention. The court will also hear Galette vs. New Jersey Transit Corporation about whether the New Jersey Transit Corp. Is an arm of the State of New Jersey for immunity purposes. And finally is M and k Employee Solutions vs Trustees of the IAM National Pension Fund, which is about federal law on pension plans and specifically how to calculate an employer's liability when an employer withdraws from a pension plan funded by multiple employers.

[Leah Litman]

Strict scrutiny is brought to you by Smalls. Now, I may have a dog, but I'm also a cat person. So much so that my high school friend's family used to send me pictures of their family cat after we left for college. College. No joke. It's the attitude, you know, the idgaf, but also the entitlement. Truly unmatched. There's a reason we talk about Elena Kagan stroking a hairless cat after some of her masterful turns. And we need to honor those feline divas. It's 2026. So are you still feeding your cat like it's 1926? This podcast is sponsored by Smalls and for a limited time you can get 60% off your first order plus free shipping when you head to smalls.com smalls cat food is protein packed recipes made with preservative free ingredients you'd find in your fridge and it's delivered right to your door. That's why cats.com named Smalls their best overall cat food. Starting with Smalls is easy. Just share information about your cat's diet, health and food preferences. Then Smalls puts together a personalized sampler for your cat. No more picking between random brands at the store. Smalls has the right food to satisfy any cats cravings. After switching to smalls, 88% of cat owners reported overall health improvements. That's a big deal and the team at Smalls is so confident your cat will love their product that you can try it risk free. That means they will refund you if your cat won't eat their food. Make 2026 your cat's healthiest year yet. Take advantage of their New Year's special and get 60% off your first order plus free shipping when you head to smalls.com one last time. That's 60% off your first order plus Free shipping when you head to smalls dot com strict this episode is sponsored by BetterHelp. It's a new year, but that doesn't require a new you. We're still the same podcast after all, and these guys are still the same Supreme Court. Don't let anybody tell you otherwise, but maybe the new year could mean a less burdened you so you can cope, at least for the time being with a court week. Have Therapy can help more easily identify what weighs you down and holds you back by offering an unbiased perspective. They're still pretty sure Sam Alito is the problem. More seriously, therapy offers an unbiased perspective to better understand your relationships, motivations and emotions. Therapy has helped me loosen some of my insecurities and to continue working through them so I'm not constantly running around thinking that everyone thinks I'm a dumb Dumb. Yes, that's a real thing. BetterHelp offers very high quality therapists who work according to a strict code of conduct and are fully licensed in the United States. And there's their therapist match commitment. BetterHelp does the initial matching work for you so that you can focus on your therapy goals. A short questionnaire helps identify your needs and preferences and their more than 12 years of experience and industry leading match fulfillment rate means they typically get it right the first time. But if you're not happy with your match, you can you can switch to a different therapist at any time from their tailored recommendations. With over 30,000 therapists, BetterHelp is one of the world's largest online therapy platforms, Having served over 5 million people globally and it works with an average rating of 4.9 out of 5 for a live session based on over 1.7 million client reviews. BetterHelp makes it easy to get matched online with a qualified therapist. Sign up and get 10% [e-mail] that's betterhelp.com strict. Let's turn now to some legal news we wanted to discuss. We were away for a while, but it doesn't mean we don't have thoughts on what happened during that time. And for some of this segment, we are delighted to be joined by a very special guest.

[Melissa Murray]

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

[Leah Litman]

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

[Marty Lederman]

Thanks. It's a real privilege and honor Thrill to be with you guys.

[Kate Shaw]

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

[Leah Litman]

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

[Kate Shaw]

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

[Marty Lederman]

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

[Kate Shaw]

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

[Marty Lederman]

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

[Leah Litman]

I didn't realize the Supremacy Clause said except for the President or Congress in who's bound by federal law.

[Marty Lederman]

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

[Melissa Murray]

Well, so Marty, can I jump in there?

[Marty Lederman]

Sure.

[Melissa Murray]

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

[Marty Lederman]

So that's a really rich and difficult question, Melissa. Olc, like courts, is very reluctant to overrule its precedents and it has an internal stare decisis doctrine.

[Kate Shaw]

How novel.

[Marty Lederman]

It's not very well established and there aren't haven't until recent years there weren't a lot of cases where the issue really came up, like what the standards are for overruling an opinion. I don't know that anyone in the executive branch has ever asked OLC to revisit the conclusions of the bar memorandum. That's one of the problems. OLC is a reactive entity and if no one's asking, it won't revisit it.

[Leah Litman]

Consider this my official request. OLC to revisit the bar membo.

[Marty Lederman]

Yes. OLC does not, not give legal advice to Congress or to members of the public, but only.

[Kate Shaw]

What about podcasters?

[Melissa Murray]

Branch is just a bunch of podcasters.

[Leah Litman]

So seems like.

[Melissa Murray]

But not lady podcasters. So there you are.

[Marty Lederman]

Yes. Well, there's a classified memorandum of all the podcasts. I'm not really permitted to talk about that one.

[Kate Shaw]

So Harmeet Dylan commissioned.

[Leah Litman]

After calling them hoes. So sorry Marty.

[Marty Lederman]

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

[Leah Litman]

So maybe going to like some of the other memos and other questions like in addition to the Barr memo, it does seem like they are cobbling together different excerpts from not just that memo, but OLC memos on other uses of force and you know, suggesting like add it up all together, right? Take a little bit from this one and that one and then poof, it means Venezuela.

[Marty Lederman]

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

[Melissa Murray]

So this is basically a Franken memo of all the use of force in every memo that possibly would allow it cobbled together to make some kind of use of force monster that now will justify these actions in Venezuela and possible.

[Leah Litman]

Greenland, Cuba and Colombia.

[Melissa Murray]

I mean, does anyone know how. Did anyone read Frankenstein? Did anyone read.

[Marty Lederman]

No, I've heard Jacob Elordi is actually.

[Melissa Murray]

Quite good in the movie.

[Marty Lederman]

I haven't seen it.

[Leah Litman]

He is. He is.

[Marty Lederman]

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

[Leah Litman]

Right.

[Kate Shaw]

But here, this is. Maybe this is a feature, not a bug that their justification actually will authorize.

[Marty Lederman]

They think this is a feature.

[Leah Litman]

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

[Kate Shaw]

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

[Marty Lederman]

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

[Leah Litman]

Oh, this just in on that. This just in from J.D. vance. Let's play his hot take. The President, I believe himself has already.

[Marty Lederman]

Said every President, Democrat or Republican, believes the War Powers act is fundamentally a fake and unconstitutional law.

[Leah Litman]

Coming from someone who was really nowhere to be seen during the operation, you know, of the invasion of Venezuela and then announcing the subsequent running and or coercing of Venezuela, I think the two.

[Marty Lederman]

Things that strike me as sort of the Frankenstein is Melissa Priest put it together. There's several different strands, but the two important ones are one, everyone agrees and the Trump administration does not disagree that this breaches the UN charter. And what was really striking was the US's presentation in the Security Council the other day. There was not the slightest effort at making a legal justification for this. I mean, the most shocking thing about it is what was not said, which was there was the whole meeting is about the US has probably breached the charter and the UN Representative from the United States said not a word about it. But the main thing that I wanted to focus on is what is the affirmative authority for this. It's hard to point to restrictions in the Constitution or in a statute or apart from the charter, in a treaty that prevents all this from happening. They are 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. And I think that's really the larger problem is this idea that until Congress passes a statute to restrict what you're doing, you can do anything you want with the armed forces.

[Kate Shaw]

All right, so let's leave it there and turn now to the Court's big shadow docket decision in the National Guard case, Trump v. Illinois, which was announced on December 23. Kind of a lump of coal in the administration's stocking just before Christmas. Although, you know, knowing how much this administration loves coal, I was thinking maybe we need a new metaphor. Maybe it was a wind turbine in their stocking. But but also as we'll talk about, obviously this is maybe somewhat solar panel. I thought of electric vehicle, a little mini one exactly in their stocking. The most fearsome, much scarier than any of them, renewables. In any event, what we are talking about, dear listeners, is the Supreme Court by a vote of 6 to 3 on the eve of Christmas Eve, denied the government's request to stay a lower court order that had blocked the President's federalization and deployment of the National Guard in Chicago. Although this happened in the Chicago case, it seems quite clear that the Court's reasoning applies to the federalization and deployment of the National Guard elsewhere. So that's Portland, Los Angeles, Memphis and anywhere else the President might decide to turn his attention.

[Leah Litman]

And the Court adopted the argument advanced by now official mensch of the pod, Marty Lederman. So under the relevant statute, 12406, the president can only federalize the guard in three situations, including where, quote, regular forces are insufficient to execute United States laws.

[Melissa Murray]

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

[Marty Lederman]

So the true story is back in June, I guess, when the President first used the National Guard in Los Angeles, they invoked this statute. From my time in OLC and my time as a scholar, I've done a little bit of work on the Insurrection Acts, which are the ones that are usually used by a President to bring in to call in force either the National Guard, the militia or the regular forces, the ordinary army, in various contexts throughout our national history. I want to pause to say, and then we can come back to this, that in the vast majority of those cases, it's at the invitation of the state, the state is unable to quell violence that has arisen and the Governor asks the President for help, as in the Rodney King case or the Detroit riot in 1967, which I remember vividly. I was there as a young boy. There are very, very few cases in which the President has used military forces on domestic soil against the wishes of the local authorities and the governor. The last time, the famous times are 1957 in Little Rock, 1964 in Alabama, where the governors were basically in cahoots with the persons committing private violence and were resisting the application of federal law. So here they pull out this statute. I'd never heard of 12406 and no one had really ever considered it, had never been used before, really as a standalone, as a justification for a deployment of the military military, let alone in these circumstances. And I found that very strange. Why weren't they invoking the Insurrection act or a so called constitutional protective power, which has sometimes been invoked but very rarely. Why did they turn to the statute no one's ever heard of? And I looked at the statute and it's enacted for the first time in 1903. It's called the Dick act because Representative Dick was the principal sponsor. And then this language was amended and added in 1908. I'm like, wait a minute, there were no ice forces in 1908. That can't be what Congress had in mind. And maybe it's just the OLC lawyer In me. But the first question I would always ask is, what is this statute about? What was Congress doing? Why isn't anyone talking about where this statute came from, how it's been used in the past? It uses a phrase that's very unusual, first of all, that the President be unable with the regular forces to implement, to execute federal law that doesn't appear in any of the other statutes. Where did that come from? What did they mean by unable? What did they mean by the regular forces? And I asked some friends, friends of ours, friends of the pod, who have also done some work on Insurrection act history, like, what do you guys know about this? So I thought, okay, this is a great answer to the question that students are always asking us. Do you have a topic that I can write a paper on? Like, yeah, go figure out what this 1908 statute meant. This is great. And I just kind of let it sit. And in the subsequent months, all the parties, the federal government and the state governments and all their amici and all of these federal judges in California and in Oregon and in Illinois are going, first of all, they all come up with a test for what it means to be unable to execute federal law that the Ninth Circuit comes up with. It's a very reasonable test, but it's kind of pulled out of thin air, which is like significant impairment, impediment on your ability to enforce the law. And then they apply it in excruciating detail to the facts on the ground in Portland, in la, in Chicago, and decide whether President Trump was reasonably decided that he couldn't enforce the law, that he was unable to, that there was significant impediments in these cities. And the judges in the lower courts were understandably very, very dubious about the President, President's determination there, because this seemed like the ordinary violence one gets with protests all the time without bringing in the military, any form of the military. And so finally, the SG applies in whatever month it was, October, late September, October applies for a stay in the Supreme Court. And still no one's dealing with this except the district court judge in Chicago. To her credit, she at least did a couple paragraphs on it. And I'm like, oh, this is crazy. They're asking the court to resolve questions that don't really, as far as I can tell, are not what the statute is about. And this is the important point, I think you guys would probably all agree. These are questions that I'm sure most of the justices were not eager to answer. Both the legal question of what does Congress mean by unable to it's kind of a hard question. Question. And also about question, you know, how rigorous should the judiciary be at second guessing a presidential determination that a statutory standard is met? A deep question that's at issue in the Enemy Aliens act, in the Tariff act cases and the Lisa Cook case and all of these cases. The justices hardly want to say, we're going to say that Donald Trump's determinations are unreasonable. And they also don't want to rubber stamp those determinations because most people agree that they're protectual and that they're, you know, like the lower courts did here. So I don't think they relished this, this application from the sg. I'm sure they were looking for what, for an off ramp.

[Leah Litman]

Yeah. And you gave them.

[Marty Lederman]

And it turns out for what? And it turns out there was a good one. Like, so. So it was a combination of those two things. It was. It was a case in which the justices were. Were amenable to an off ramp to a different statutory interpretation. And it turned out, turns out just fortuitously that that was clearly the right interpretation. Which, by the way, I'd like to take credit for this, but I think if any lawyer had dug down, you would have figured out quite quickly that this was the correct interpretation. And notably, none of the justices takes issue with it.

[Leah Litman]

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

[Kate Shaw]

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

[Marty Lederman]

So I'm a bit of an obsessive.

[Kate Shaw]

And we love that.

[Marty Lederman]

You know that old cartoon about, like, come to bed, it's three o'.

[Leah Litman]

Clock.

[Marty Lederman]

I can't. There's someone saying something wrong on the Internet. Okay, well, there was a lot of people saying something wrong in the Supreme Court, and Justice Barrett gave the parties three days to file briefs in response to the.

[Melissa Murray]

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

[Marty Lederman]

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

[Kate Shaw]

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

[Marty Lederman]

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

[Leah Litman]

It got the job done.

[Kate Shaw]

It got the job done, Marty.

[Melissa Murray]

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

[Kate Shaw]

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

[Marty Lederman]

Your guess is as good as mine, Kate. I mean, I do think this is, this was the concern. This may have been one of the reasons the states were not making the argument that I was making. They were afraid that. That the Trump administration would just turn around and invoke the Insurrection act and send in the regular military. And I do want to. We can maybe circle back to it in light of the tragic events yesterday in Minneapolis and Renee Goods killing circle back to the question of, you know, these statutes and the constitutional tradition that you refer to are almost turned on their head. Right. I mean, I think most Americans would agree that a militarized ICE or local law enforcement are in some ways much more dangerous, maybe as a practical matter, than the trained military forces who would, who would not use lethal force nearly as quickly and without any standards as those forces are. So there's a certain irony here. But, yeah, in my first brief, I urged the court not to address the Insurrection act questions. And the executive branch has historically construed those laws not to apply in cases like this. But the language of those laws is very broad. Just looking at the statutes themselves, without regard to the history or the traditional that Deputy Attorney General Nick Katzenbach wrote about in 1964. So I cite this memorandum saying that it should be construed consistent with our Constitution and our history of great skepticism about the militarization on U.S. soil for law enforcement purposes. And that should only be used in discrete, limited circumstances, and urged the court to hold that the military, military, you know, you had to, the, the National Guard could only be used if the regular military was both legally authorized to act and was unable to. To. To address the problem adequately. And interestingly, the court did adopt that second argument of mine. Right. They did say they basically took this one, 2406 this idiosyncratic statute off the table, which I think is reflected in the fact that the administration's pulling all the troops troops from they were never really deployed or not much deployed in Los Angeles and Portland and Chicago, but they've led them back into their state National Guard posture.

[Leah Litman]

Well, I was going to ask you, you apparently persuaded the President, Marty, who posted on Truth Social to announce that he would comply with the court's order and was removing the National Guard from those places. I don't know if that makes him the pull out president or what, but how does that.

[Marty Lederman]

Well, I, I think he's just very attuned to what I suggest.

[Leah Litman]

Yeah, he was deep in that brief.

[Marty Lederman]

Yeah, he's very responsive to it. No, I think he was told, I think the message from the Supreme Court, the implicit message was enough of this 12, 406 thing. That's a dead letter here. Either you're going to say that there's authority under the Insurrection ACT or Article 2 for you to use the military or not, but that's what you're going to have to do. And that's a pretty pretty. I was actually heartened by the fact that they basically someone told the president don't go right in and use the military now in part because it would seem fairly absurd. Right. There's not violence going on in Chicago and Portland and Los Angeles and it would be the worst posture in which to try to assert those authorities. But he did warn that if things get worse he might do so. And so that remains, Kate, a prospect for if there is violence in reaction to immigration authorities, it might be that the Insurrection act question does arise. And I think in the first instance it won't be the courts that have to confront that. It'll be DOJ and DOD and whether they will comply with this tradition that Deputy Attorney General Katzenbach described in 1964 about the limitations on those authorities.

[Melissa Murray]

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

[Marty Lederman]

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

[Kate Shaw]

Mensch of the pod actually the podcast.

[Melissa Murray]

Mensch who looked into to the inter To. To find off ramps.

[Leah Litman]

Yes.

[Melissa Murray]

That's you.

[Marty Lederman]

It's great to be with you guys. It's a pleasure. Anytime.

[Kate Shaw]

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

[Leah Litman]

Melissa, are you okay?

[Melissa Murray]

No, Leah, I'm just staring in every single shadow docket order that allowed the President to appropriate Congress's power and or overrule extant Supreme Court precedent. So don't mind me. Fine.

[Leah Litman]

No big deal.

[Melissa Murray]

No big thing. Dissent all you like, fellas.

[Leah Litman]

Like.

[Kate Shaw]

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

[Melissa Murray]

Oh, stop. Is this a new segment for the New year? Is it time to have our inaugural? We need to talk about this Kev Currents segment. Is that what this is?

[Kate Shaw]

I think so.

[Leah Litman]

I don't manifest that. Don't manifest it. Even though I know we are.

[Melissa Murray]

It's always been there, Leah. It's always been there.

[Leah Litman]

I know.

[Melissa Murray]

I'm picking it up in 2026. I'm picking it up.

[Leah Litman]

And we have to do this because Brett took crayon to paper to not only warn us about the prosp of the President invoking the Insurrection act, but also to try to walk back the Kavanaugh stops.

[Kate Shaw]

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

[Melissa Murray]

Nothing to do with that. Was nothing to do with that he stirred himself.

[Kate Shaw]

Well, it's the background context, I guess.

[Leah Litman]

The legal issue.

[Melissa Murray]

You're reaching.

[Kate Shaw]

Completely unrelated. And yet he felt the need to say this. And so I pose the question to you too. Why?

[Leah Litman]

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

[Melissa Murray]

I will just say, when they tell you that they don't pay attention to the zeitgeist, do not believe them. They totally pay attention to what people are saying. I will also note, I don't understand what Brett was trying to do here. I mean, the horse is out of the barn, and I don't know how many ICE officials read footnotes and are like, you know what? Let me rethink my racial profile. Hold on a second. Like, how is this supposed to, like, correct something? I mean, I guess for the record, he's like, I did not authorized unrepentant racial profiling. But the horse is out of the barn. But he kind of did, and the horse is out of the barn. So I just, like, I don't know what he's trying to do here. Like, what are you trying to do here? I don't know.

[Leah Litman]

What is he ever trying to do? And, you know, not to be kind of nitpicky, but also to be nitpicky picky. You know, as Kate noted when she quoted the footnote, Kavanaugh cited Ren for the proposition that you can't make stops based on race. And it's like, my guy. You do know that Ren is the decision that effectively made it impossible to challenge racial profiling.

[Kate Shaw]

Exactly.

[Leah Litman]

Because Ren said, so long as the officer has probable cause. You know, the fact that you are alleging you were stopped based on race doesn't matter. Like, this is a decision that literally is the one associated with what it means to, like, drive while black. And, like, what is it with this guy and bad citations? Because this is not the first time he cited a case for, like, the exact opposite of what it means in his opinion. In the USAD case from a few years ago, he announced that, you know, typically, foreigners abroad don't have constitutional rights. And he cites cited. Wait for it. Boumadienne vs Bush. The case that held noncitizens detained at Guantanamo Bay, Cuba, have constitutional rights under the suspension clause. I don't know if his clerks hate him. I don't know if he can't read and also his clerks can't read. It's just mind boggling. Strict scrutiny is brought to you by by Skims. Okay, here are some of my pain points with bras. It's winter here. My skin is dry. I cannot handle anything digging into my skin or anything but the most comfortable fabrics. And that's why I am obsessed with the Skims Fits Everybody collection. Seriously, I don't think I can recall the last time I was wearing something not in the collection. I sat down to record these and yep, that is my Fits Everybody bralette. The fabrics are stretchy and support supportive but also jersey like in their softness. They help me feel comfortable from the moment I put them on until I take them off. It doesn't just matter what you wear on the outside. It's also your underoos. My personal favorite Fits Everybody pair is the Scoop Bralette and the Boy Short. I don't even know where to start with why I love them. There's the fabric, which I've already talked about, but the fit is also so comfortable. The Bralette is supportive without digging in. It just feels, feels great. It moves with me. Same with the Boy Short. They don't make me feel like I'm wearing bulky items or underwear. That's more for sports, you know, it's not like it is more restrictive, it's less restrictive, but it's also supportive. Shop my favorite bras and [e-mail] after you place your order, be sure to let them know we sent you select podcast in the survey and be sure to select our show in the dropdown menu that follows strict scrutiny is brought to you by Wild Alaskan Company. We're pescatarian at home, but let me tell you tell you buying seafood in Michigan is sometimes a challenge. They don't always have the fish we want. At least fish that's fished in sustainable ways. And sometimes we need, you know, a specific fish like a meteor fish to hold up to the sheet pan fish tikka recipe I'm obsessed with. That's why I'm super excited about the Wild Alaskan Company. Wild Alaskan company is the best way to get wild caught. Perfectly portioned, nutrient dense seafood delivered directly to your door. Trust me, you haven't tasted fish this good. We got our first box from them over the holidays and it was a sampling of sockeye and other salmon as well as haddock and halibut. And everything we've made has been fantastic. The meatier fish held up the bigger sauces like the chili crisp fish I make but it was also high quality enough to pair with lighter sauces like just some capers and olives. So why would you choose wild caught seafood? It's 100% wild caught never farmed. This means there are no anti antibiotics, GMOs or additives. Just clean real fish that support healthy oceans and fishing communities. It's also nutrient rich and full of flavor. Wild Alaskan fish is frozen off the boat to lock in taste, texture and nutrients like omega 3s. And it's sustainably sourced. It's wild caught from Alaska, so every order supports sustainable harvesting practices and your membership delivers flexible shipments, expert tips and truly feel good seafood. As my intro spiel suggested. My favorite is probably the Pacific Halibut, but I also love the sablefish. It's just nice to have two very different fish that both taste delicious. You can try it risk free. There's a 100% money back guarantee. If you're not completely satisfied with your first box, Wild Alaskan company will give you a full refund. No questions asked, no risk, just high quality seafood. Not all fish are the same. Get seafood you can trust. Go to wildalaskan.comstrict for $35 off your first box of premium wild caught seafood. That's wildalaskan.comstricted for $35 off your first order. Thanks to Wild Alaskan Company for sponsoring this episode.

[Melissa Murray]

All right folks, so there's some additional legal news that we want to wanted to cover. As Marty alluded to when we were talking about the National Guard case last Wednesday there was another ICE shooting. This time it was a fatal shooting of a civilian, 37 year old Renee Nicole Good, a wife and the mother of a 6 year old. DHS's initial statement suggested that the officer who shot Good did so because Good was quote, a terrorist who tried to assault the officer with her vehicle. However, there is contradictory video evidence and the video suggests that Good may have simply been trying to turn her car around when the officer fired his gun into her car window at point blank range, shooting her in the face. The New York Times has a slow motion analysis of the entire incident and it is worth checking out.

[Leah Litman]

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

[Melissa Murray]

I. Yeah, so Juliette Kayam, who used to be in DHS in the Obama administration, had a really great segment on kqed, the National Public Radio affiliate in the San Francisco Bay area. And one of the things she pointed out that I thought was exactly right and that I hadn't thought about about is the idea that even if you were being non compliant with law enforcement, that's kind of what law enforcement is supposed to be prepared to address. Like most people who come into contact need to be arrested or whatever are violating the law. Like, like let's literally like you're supposed to be trained to deal with people engaged in non compliance and most of the time dealing with them does not require them to be dead at the end of the interaction. Like part of your training is about how to diffuse situations even with non compliant people so that they may be restrained but they're still alive. And the fact that this, there's so much wrong with the video here, not just, you know, that it ends in her death, but that they don't render medical assistance to her, even though there is a physician who's identified himself as.

[Leah Litman]

A physician, they walk away, they don't provide assistance, they don't let other people.

[Melissa Murray]

Leave the scene, which is like altering an active crime scene when you leave. I mean, there's just so much wrong here. And then Kristi Noem calls this, oh my God, domestic terrorism. And they won't allow Minnesota to meaningfully participate in the investigation. Yet we know from 911 that one of the failures of 911 was the failure of domestic, domestic, state and local law enforcement to work with the federal government. So going forward, post 9 11, that was standard. If you had quote, unquote, terrorism, you were supposed to engage not just the feds, but also state.

[Leah Litman]

Also, there's no such thing as domestic terrorism. That's not a thing.

[Melissa Murray]

Well, I mean, but using, even using her language, it doesn't make sense. Like, if this was truly terrorism, you're supposed to work with the state and local officials.

[Kate Shaw]

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

[Melissa Murray]

This is, well, the six weeks of training. They've gone from basically it was like 15 plus weeks to now six weeks.

[Leah Litman]

But in some ways, but that's the.

[Kate Shaw]

Charitable reading, is that they're just not actually giving them the tools they need to diffuse, but maybe they don't want them to defeat that. That is the less terrible reading.

[Leah Litman]

Well, the posture now is you shoot someone and we'll say anything to defend you completely.

[Kate Shaw]

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

[Melissa Murray]

Of Minneapolis to ICE get the out of Minneapolis.

[Kate Shaw]

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

[Leah Litman]

The Trump administration is so fixated on Minnesota right now.

[Melissa Murray]

Well, I wish I knew.

[Leah Litman]

I mean, I wish they would just.

[Kate Shaw]

Leave us the alone. I mean, seriously, Minneapolis and Minnesota residents have been stepping out to challenge federal law enforcement presence.

[Leah Litman]

They're going to run somebody else over and shoot them.

[Marty Lederman]

Going to shoot someone else and kill them.

[Leah Litman]

You're going to murder someone else?

[Melissa Murray]

You want to shoot someone else?

[Marty Lederman]

Come on, kill us all. You can't kill us all. You can't kill us all. Maxis.

[Leah Litman]

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

[Melissa Murray]

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

[Kate Shaw]

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

[Leah Litman]

Another apparently objectionable book shows a picture of. Of a pregnant woman walking together with another woman, which could imply that they are, gasp, the horror. Lesbians.

[Melissa Murray]

I don't know. Neil Gorsuch might have a different take, Right?

[Leah Litman]

He would think that they are drag queens or like bds. Yes. Yeah, yeah, yeah. That was his take on Pride Puppy.

[Melissa Murray]

Anyway, speaking of civil wrongs, our Assistant Attorney General of Civilization Rights continues to cover herself in absolute glory in this social media savvy administration. It is hard to outshitpost your fellow Senate confirmed officials. But the Assistant Attorney General for civil rights, one, Harmeet Dhillon, certainly tried. Ms. Dillon, like other Trump officers, has been criticized by right wing influencers because they don't think she's done enough to be really, really right wing. And, and in particular, they note that she has failed to launch politically vindictive prosecutions of every single person who ever investigated anyone involved in the January 6th insurrection. And Ms. Dylan took that personally. Like any other diligent public official, she decided to get on X Twitter where she posted the following quote, Conservative influencers. If you think you are keeping the pressure off on or winning by spreading bullshit attacks on Donald Trump's handpicked cabinet, you are not. You are earning money to spread misinformation.

[Leah Litman]

You are hoes.

[Melissa Murray]

Learn an honest profession.

[Leah Litman]

Meow.

[Melissa Murray]

Bowl of milk to table three. What? Okay, so there's so much to unpack here. I never thought I would see the day, day when the Assistant Attorney General for Civil Rights would get on social media and call people hoes.

[Leah Litman]

I didn't either. Like, I read that and I thought, this has to be fake. It was not.

[Melissa Murray]

I thought so too.

[Leah Litman]

And we should. We should all take stock of, you know, the norms, such as they are. What is objectionable, apparently, is a picture of two women walking together. Together. What isn't objectionable is calling right wing pundits hoes. So this is the new civil rights or whatever it is they're propagating over there? Yeah, I guess we'll just maybe also.

[Kate Shaw]

Spell it like a garden hoe. There was that. I mean that was like the least of the problems.

[Melissa Murray]

Isn't that how it's spelled? I mean, how do you spell it?

[Kate Shaw]

I mean, I think just ho. There's a. There's a long foot. That's hot opinion about this.

[Leah Litman]

Is there? The plural is.

[Kate Shaw]

The plural is tricky.

[Melissa Murray]

What's the style guide for hoe?

[Kate Shaw]

I just remember opposing opinion that somebody dredged up after this. That was the year before I clicked for him. That had a long footnote about a mistaken transcription of. Of an accusation that someone was a hoe. Hoe. And the footnote says something like.

[Melissa Murray]

Well, no, like singular is definitely question.

[Leah Litman]

Is plural. Yeah, yeah, yeah. It's still ho.

[Kate Shaw]

S I think is questionable. It's a plural. I hear you. Hos. You think looks like hos.

[Melissa Murray]

Yeah, yeah.

[Kate Shaw]

You could throw in an incorrect. But. But sometimes, you know, like, no, this.

[Melissa Murray]

Is not, this is not a holiday card. You're not going to have incorrect apostrophes. Like, I can't tell you how aggravated this made me during the holiday season when I was like, do I have to send a style sheet to everyone who has a plural?

[Leah Litman]

Like, well, what is the plural of hoes for?

[Kate Shaw]

Or holiday hoes?

[Melissa Murray]

No, you know when people have an S on their last name but they can't. Like you got to do es and said they do.

[Leah Litman]

No.

[Melissa Murray]

Possibly. I'm like, no, no, honey, no.

[Kate Shaw]

Yes. No, no. Your standards are high.

[Leah Litman]

Speaking of parsing language, we. That's my attempt.

[Kate Shaw]

Good segue.

[Leah Litman]

We got the Supreme Court's first opinion in an argued case. It was Bowie versus United States, an important habeas case. This was a five to four opinion. You know, for the most part, although one part was five to three, Justice Sotomayor wrote for a majority that the limitations in the anti terrorism and effective death penalty and act that specifically like explicitly apply to petitions brought under 2254. The provision governing post conviction relief for state prisoners do not apply to petitions brought under 2255, the provision governing post conviction relief for federal prisoners. So under AEDPA, claims that are re raised in a second or successive 2254 petition, again, those are petitions brought by state prisoners must be dismissed. But the law contains no similar provision on 2255 for federal prisoners. And the court said, you know what? Textualism, the text, it matters. At least five of them said this. The court also said that another provision governing second or successive petitions which prevents petitioners from filing cert petitions, that is asking the Supreme Court to hear their case when their request to the Court of Appeals to file a second or successive application is denied. That also doesn't apply to 2255 petitions. Again, federal prison prisoners as opposed to state prisoners. Noted textualist Neil Gorsuch wrote the dissent for himself, Alito, Thomas and Barrett. Barrett only joined, you know, the opinion on one part of that, not the other. She listened to the law. She just didn't like what it said. I would have put this opinion in my favorite things, but I've already got another opinion in there.

[Kate Shaw]

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

[Leah Litman]

No, maybe there are just no unanimous opinions. Right. And this is a sign about where entertain that possibility.

[Kate Shaw]

Yeah. So I think it's a post consensus court. Yeah, I think they might have just told us that. Yeah.

[Leah Litman]

Strict scrutiny is brought to you by Cook Unity. I am hitting reset this year. Last semester was exhausting, so I'm switching up my routines in a few different ways. There are the stretching classes and yin yoga at night. But I also needed to find a a way to eat tasty food that wouldn't take me so much time to make or wouldn't be something I'd just order on delivery when I realized I didn't have anything to eat. Cook Unity brings restaurant level flavor to you with fresh ingredients with chef designed dishes that balance nourishment, creativity and everyday luxury. They're also launching Chef's Table Lunar Feast Drop, a limited two week collaboration where chefs celebrate Lunar New Year with symbolic fortune filled dishes and behind the scenes straight storytelling. Here are some of my personal favorites from CookUnity that have helped me stick with my new year reset. There's the Sriracha honey glazed Salmon bites. I'm a sucker for spicy fish, which means I'm also all about the shrimp ceviche tostadas. I mean, I can't get ceviche unless I order at a restaurant until cookunity. One of my favorite things about cookunity is that I get to browse selections from a bunch of chefs I know and I like usually because I saw them on tv, often Top Chef, but sometimes be Bobby Flay. It just makes food shopping more fun. Plus I feel pretty cool having my meals provided by Art Smith who is a walking ball of joy, at least from what I can tell on tv as are his meals. And Michelle Bernstein, who I'm kind of a fan girl of. When we were in Miami, we went to one of her cocktail bars. With cookunity, there's no cooking, shopping or thinking about how to get the nutrition and comfort meals you need every week. Shopping for prepping, cooking and cleaning quality meals takes time, but it doesn't have to be your time and you choose from a rotating seasonal menu of over 300 meals. Or you can let CookUnity's platform provide personalized recommendations. There are new celebrity chefs who are always joining like restaurateur Marcus Samuelsson or Michelin starred Rick Bayless. Heck yeah. Frontera. Taste, comfort and craftsmanship in every bite. From the award winning chefs behind CookUnity. Go to cookunity.com strict or enter code strict before checkout to get 50% off your first order. That's 50% off your first order by using code strict or going to cookunity.com.

[Melissa Murray]

Strict New Year New Gear Thousands of fresh active styles are at Nordstrom Rack stores now. Save on top brands like Nike, Puma and free people starting at just $35. How did I not know Rack has Adidas?

[Kate Shaw]

Cause there's always something new.

[Melissa Murray]

Plus, join the Nordy Club to shop new arrivals first, first unlock exclusive discounts and more. Great brands, great prices. That's why you rack. One final thing, and this is really kind of an addendum to our conversation with Marty. Of course, after we talk to Marty about this administration's disdain for the law, including the War Powers act, which Vice President of the United States J.D. vance called fundamentally fake and unconstitutional. Not so, but whatever. In any event, after we talked with Marty about the administration's disdain for the law, the New York Times published a wide ranging interview with Donald Trump in which the President of the United States had the following things to say so.

[Leah Litman]

Asked if there were any limits on his global powers, Mr. Trump said, quote, yeah, there is one thing. My own morality, my own mind. It's the only thing that can stop stop me.

[Kate Shaw]

There were quite a few other eye poppers in that interview. Here are a couple of others. 1. When the interviewers followed up about whether the administration needed to comply with international law, Trump said, I do. But then Quickly added, it depends what your definition of international law is. He did add, quote, I'm not looking to hurt people, which I, for one, found hugely comforting.

[Melissa Murray]

Really depends on who you count as people.

[Leah Litman]

People.

[Kate Shaw]

People and hurt.

[Leah Litman]

Yeah. All right.

[Kate Shaw]

And looking, too, versus just incidentally managed to do so. Yeah, you're right.

[Leah Litman]

A lot.

[Melissa Murray]

A lot.

[Kate Shaw]

A lot of potential questions embedded in there.

[Melissa Murray]

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

[Kate Shaw]

That was absolutely. In an insane interview. That was actually.

[Melissa Murray]

I don't. I actually thought this was the least insane thing about the interview. No, no, no.

[Kate Shaw]

Tell me how.

[Melissa Murray]

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

[Leah Litman]

What about psychologically needed?

[Kate Shaw]

Like, that's the part that was so peculiar and perplexing. That's because you're right. There is a concrete argument.

[Melissa Murray]

A real estate mogul, totally. He has the mindset of an owner. He's like, I'm not a renter.

[Kate Shaw]

Absolutely.

[Melissa Murray]

I'm not sure.

[Leah Litman]

And so he needs to invade a NATO ally. Right. Like that. That's the part that makes a little, I mean, like, mindset of an owner we don't like. Leah.

[Melissa Murray]

Like, you got to understand the New York real estate market to really inhabit this obviously, like, you know, like, renting is different. Like, you put up walls, but are you staying there forever? Who knows? He's like, you can do more. It's better for your psychological success to own.

[Kate Shaw]

Well, the stuff he's doing to the White House does not seem like renter stuff.

[Melissa Murray]

No, I think. Exactly. Exactly. If you were wondering about that third term, I think you know now. Yeah, it's all been answered.

[Leah Litman]

Let's talk about some of the things that are psychologically needed for our success. Our favorite things.

[Kate Shaw]

Good idea.

[Melissa Murray]

Good segue, Leah. You're crushing it in 2026.

[Kate Shaw]

2026. I agree.

[Melissa Murray]

I will start.

[Leah Litman]

Thank you. So I appreciated Chris Geidner's piece on law Dorg. Jan Crawford's attack on SCOTUS corruption narrative was its own substantive, free narrative. Also, Sherrilyn Ifill on Sherrilyn's newsletter over at Substat, the year American America broke open. Kind of reflecting on the first year of the Trump administration and what we should take from it. As I mentioned, I have an opinion that goes in here, and that is the Wyoming State Supreme Court decision striking down the state's abortion ban, which is subject to only the narrowest exceptions. The court held that the Wyoming Constitution includes a fundamental right to health care and that abortion is a necessary component of women's health care. Because this law implicated a fundamental right, the court applied strict score scrutiny, the best standard, as we often say, to strike down the restriction. On a less substantive note, over the break, I read all of the Game Changers series, the books. And I watched. Yep. And I watched Heated Rivalry. So the books, you know, they're not like my favorite romance books. You know, they're cute, they're endearing. They get like a little formulaic by the end. And then, then my sister, youngest sister, insisted I watched all of Heated Rivalry the first three episodes. I was kind of like, I don't really get it. You know, it's a thing. Then the end of the fourth episode, my soul left my body. I was levitating. I cannot listen to the remake of all the things you said.

[Melissa Murray]

Oh, I love that tattoo. Tattoo.

[Leah Litman]

It's a remake of the song by another artist that I'm blanking on. It plays at the end of episode four. You will not be able to listen to that song without reliving the end of episode four. I guarantee you.

[Melissa Murray]

I'm not. I'm teed up for episode three.

[Leah Litman]

Okay. Make it through episode three and then episode four. Life changing episodes five and six. Endearing. So that's all I will say there.

[Melissa Murray]

Kate has a look on her face. It's just like words.

[Kate Shaw]

No, I plan to watch this. I'm still finishing the most recent season of the White Lotus, which I promise I'll finish. And then I'm gonna do the Beast in me, which I am excited about. Did you guys watch that?

[Leah Litman]

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

[Kate Shaw]

But still worth watching.

[Melissa Murray]

Yeah, yeah, yeah. I think Britney Snow is having an amazing year. Between that and the Hunting Wives, like, good for her.

[Leah Litman]

Yeah, for sure. For sure.

[Melissa Murray]

Yeah. Especially after the whole thing with her.

[Leah Litman]

Tyler. I know, I know.

[Melissa Murray]

You know what?

[Leah Litman]

One other item in my favorite thing. This upcoming Wednesday, January 14th from 12 to 1:30 in the upper Senate park in Washington D.C. there's going to be a big rally. Rally for America's workforce. Pawa. Pawa to the people. So in March, the Trump administration issued an executive order that stripped collective bargaining rights from like 85% of the unionized federal workforce. And Protect American America's Workforce Act Pow wow. Passed the House last month that would overturn that executive order and restore collective bargaining rights. And the January 14 rally is aimed at pressuring Congress to actually pass Powwow, you know, as part of upcoming appropriations. So if you're in D.C. it's 1-14-12 to 1:30 in upper Senate Park.

[Kate Shaw]

All right, I think my turn. Some favorite things. Okay. I too did some reading over the break, although not as much as it sounds like Leah did. I read read audition on Melissa's recommendation, I think in our la one of our last episodes. Katie Kamora loved it. Yeah, still thinking about it. I read A Marriage at Sea and I finally read this is a few years old now, but David Grand's nonfiction swashbuckling seafaring book the Wager set in the 1740s and like the most riveting thing you've ever read. So a lot of seafaring disasters for me over the holiday. A couple other things to recommend. You might have missed it because year last last week there was just so much news. But our friend Commander Professor Steve Lack had excellent testimony before the Senate Judiciary Committee, I think on Wednesday of last week. And there are people in Congress who are still talking about impeaching federal judges for ruling against the Trump administration. And he is just incredibly forceful in his push back. So recommend either reading or watching that testimony. Also, sorry, one more thing I said on the reading front. I feel like I want to throw myself a party. I finally finished the Power Broker.

[Melissa Murray]

You guys all right.

[Kate Shaw]

I am so proud of myself and also really understand a lot of things about New York real estate and history.

[Melissa Murray]

Then you should have understood the psychological needs. Greenland.

[Kate Shaw]

The, the, the honestly, the Bob Moses Donald Trump nexus is significant.

[Melissa Murray]

Oh yeah.

[Kate Shaw]

Thoughts on that? I mean many.

[Melissa Murray]

Yeah.

[Kate Shaw]

But okay, so last thing though I will recommend is I met a lovely young Stricti at the Albany New York Airport airport gift shop on December 27th when we were like dealing with absolute travel Michigan. A blizzard grounded us. We ended up staying a night in Albany, a night in Atlanta before we finally made it to Mexico for like five nights. But okay, so this young woman came up to me while I was with my 14 year old and said are you the podcaster? You're an icon. She said, you're an icon in front of my 14 year old and you Cannot buy that kind of publicity. It was. Was my 14 year old was like.

[Melissa Murray]

Damn, mom, that's so cool.

[Kate Shaw]

Anyway, I was like, I did not set that up. That just happened in the wild organically. Anyway, I'm so sorry I didn't get your name. I was just so excited by the interaction. But thank you for making me look extremely cool just momentarily in the eyes of my teenager.

[Melissa Murray]

I mean, that is a big thing, you know, my teenager is just so.

[Kate Shaw]

Overwhelmed, underwhelmed with everything We've you listeners see Melissa in the wild, just like, tell her she's an iconic. If someone, if an offspring happens to be nearby and hears it, that would be great.

[Melissa Murray]

Once I was walking with my teenager and we ran into Busy Phillips, who I had testified before Congress with. And so I stopped and talked to Busy Phillips for a little bit. And then on the way back, my teenager's like, how do you know her? I was like, oh, we testified before congress together. And then my teenager was like, oh, I thought it was like something cool. It's like, nope, it's pretty boring stuff. Flaw related. Sorry. I was like, when would I be doing something really cool with Busy Phillips?

[Kate Shaw]

Like, come on.

[Melissa Murray]

Anyway, okay. So over the break, I found unexpectedly a book that hit my sweet spot of rom com and thinly veiled critique of the British royal family. And it was called Heir Apparent by Rebecca Armitage. It was also apparently a Reese's book pick, but I absolutely loved it. I thought it was fantastic. Read it in like two days.

[Marty Lederman]

Boom.

[Melissa Murray]

I also reread Tomorrow and Tomorrow and Tomorrow by Gabrielle Zevin, which still slaps. If you have not read this book, pick it up. It's so, so good. I didn't read it for almost two months because the blurb on the back suggested that it was related to video games. And I was like, why do I want to do that? Like, I hate video games, but it's not really about video games and it's just an amazing epic friendship story. Pick it up. It's absolutely fantastic. At the urging of many friends, including Leah, I just started heated rivalry on HBO Max and loving it. Just like red, white and royal blue.

[Kate Shaw]

Only when hockey.

[Leah Litman]

I love it.

[Melissa Murray]

So good. So if you Watch us on YouTube when you're done watching our entire episode on YouTube, pivot again to Zwe. I know. I've recommended her interview with Eric Adams. She dropped a banger of an episode with rapper Vince Staples over the holidays. I've probably watched it 50 times. These two have such amazing chemistry together. Like, I literally want them to do Heated Rival Rivalry Part two, where they get together after the interview and, like, have babies or something. Like, they are. They're so. It's so obviously charged. Like, they definitely have chemistry. And it's a hilarious interview. I also saw some stricties in the wild. So I want to say happy New Year to the stricties whom I met in line at Universal Orlando. I hope that you, unlike me, did not wait 240 minutes late, literally four hours to ride Hagrid's magical motorbike.

[Kate Shaw]

How was it?

[Melissa Murray]

I didn't, I did not write. I. I was just like, literally waiting for a child. I dropped the child off at one o' clock to start the ride to get in line. I picked the child up at five o'. Clock.

[Marty Lederman]

Wow.

[Kate Shaw]

I was like, was it life changing ride? Yeah. And what was the answer?

[Leah Litman]

Yes.

[Kate Shaw]

Okay, Cool.

[Leah Litman]

And I'm like, okay.

[Melissa Murray]

I. I mean, I guess they have to learn patience. And they did great.

[Leah Litman]

So some housekeeping before we go. As is a parent from our Favorite things. We love meeting stricties. And if you are a West coast strict scrutiny listener, have you ever thought to yourself, I would like to see strict scrutiny live? I wish this expert legal analysis peppered with insults to Samuel Alito's character were happening live before my very eyes. You are in luck. We are bringing the show to beautiful Los Angeles on March 7 at the Palace Theater. And even if you're not on the west coast, you could probably use some sun in March. Our show in San Francisco sold out, so grab your tickets to the LA show now before they're [e-mail] events.

[Kate Shaw]

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

[Leah Litman]

Strict Scrutiny is a crooked media production hosted and executive produced by me, Leah Littman, Melissa Murray and Kate Shaw. Our senior producer and editor is Melody Rowell. Michael Goldsmith is our producer. Jordan Thomas is our intern. Our music is by Eddie Cooper. We get production support from Katie Long and Adrienne Hill. Matt de Groat is our head of production. And thanks to our video team, Ben Hethcote and Johanna Case, our production staff is proudly unionized with the Writers Guild of America east, if you haven't already, Be sure to subscribe to Strict Scrutiny in your favorite podcast app and on YouTube strict scrutiny podcast so you never miss an episode. And if you want to help other people find the show, please rate and review us.

[Kate Shaw]

It really helps. Ever walk past a place for rent and wish you could just take a peek inside? Maybe even explore the layout? Envision the natural light streaming through the windows or plan where your vinyl record collection would go.

[Leah Litman]

At apartments.com you can.

[Marty Lederman]

With tools like their 3D virtual tours.

[Leah Litman]

You can see the exact unit you.

[Kate Shaw]

Could be living in. Really envision yourself in your new home.

[Leah Litman]

With Apartments.com, the place to find a place.

[Melissa Murray]

New Year New Gear Thousands of fresh active styles are at Nordstrom Rack stores now. Save on top brands like Nike, Puma and free people starting at just $35. How did I not know Rack has Adidas?

[Kate Shaw]

Cause there's always something new.

[Melissa Murray]

Plus, join the Nordy Club to shop new arrivals for first unlock. Exclusive discounts and more. Great brands, great prices. That's why you Rack.