Strict Scrutiny – December Preview: SCOTUS Doubles Down on Its BS

Episode Date: December 1, 2025
Podcast: Strict Scrutiny (Crooked Media)
Hosts: Kate Shaw, Leah Litman, Melissa Murray
Guest: New Jersey Attorney General Matthew Platkin

Episode Overview

In this episode, the hosts preview the Supreme Court's December sitting, focusing on four significant cases that test the boundaries of judicial norms, reinforce the Court's right-leaning priorities, and, as they describe, showcase SCOTUS "doubling down on its BS". Conversation is marked by irreverence, sharp legal analysis, and signature wit as they discuss a sleeper abortion-related case, looming threats to the administrative state, campaign finance deregulation, and the erosion of protections for noncitizens. The episode also features legal news updates and a dash of end-of-year levity.

Key Case Previews and Discussion

1. First Choice Women's Resource Centers v. Platkin (Abortion/First Amendment/Federal Courts)

Guest: AG Matthew Platkin
Main Discussion: 03:57–16:46

• Background and Stakes:

  • A crisis pregnancy center (First Choice) challenged New Jersey's routine investigative subpoena, arguing it "chilled" their First Amendment rights. Issue: can such targets seek federal court protection before any state enforcement action?
  • Platkin explains this is an everyday administrative inquiry—“We sent a routine subpoena … about some concerns about statements on a couple of their websites regarding services that they were providing and potentially misleading statements to people seeking medical care…” (05:01)

• Abortion and “Abortion Distortion”:

  • Though the case centers on federal court jurisdiction and First Amendment issues, the hosts stress it's only at the Supreme Court because of “abortion distortion”—the idea that abortion-related cases get special, often right-wing, legal treatment.
  • “You say the question is about...constitutional rights being chilled...But...we are actually living in a post-legal society, at least when it comes to right-wing legal circles.” – Leah Litman (06:18)

• Unprecedented Legal Theory:

  • No federal court has ever embraced this type of pre-enforcement challenge in the context of routine business subpoenas.
  • “[They] are being treated very differently than the millions of businesses who receive administrative orders...If you want to shut down the federal courts, a good way to do it would be to say every administrative subpoena received...can immediately establish Article 3 standing.” – Matthew Platkin (07:23)

• Potential Consequences:

  • If the Court rules for First Choice, it could severely constrain states’ (and potentially federal) investigative authority.
  • Platkin: “It could dramatically upend our ability to protect our consumers...The volume...of subpoenas...is extraordinary. I don't know how you have a rule that applies to crisis pregnancy centers but not to every other form of business.” (12:20)

• Political Lawfare:

  • The case is pushed by high-profile conservative litigators, signaling political motivations.

• Quotes & Notable Moments:

  • Leah: “It’s wild to me that they’re effectively giving their favorite businesses a right to pre-enforcement review when they couldn’t be bothered...in Whole Women’s Health [re: Texas shutting down abortion access].” (13:33)
  • Melissa: “The abortion distortion.” (13:48)

2. Trump v. Slaughter (Unitary Executive, Removal Power, Administrative State)

Main Discussion: 18:17–34:41

• The Big Picture:

  • The Court is poised to formally overturn or further undermine Humphrey’s Executor (1935), which restricts the President’s power to remove heads of independent agencies.
  • “The Supreme Court seems poised to decide whether to formally admit they have overruled or are in the process of overruling Humphrey's Executor...It's really doubling down on their shit-sitting.” – Melissa Murray (19:07)

• Recent Developments:

  • Recent Court actions have already whittled Humphrey’s down, notably through the “Unitary Executive Theory”—a doctrine the hosts half-jokingly refer to as the “UTI of presidential power”.
  • “This is a theory that allows the President to basically act above the law.” – Kate Shaw (23:00)

• Republican vs Democratic Administrations:

  • The theory’s application is partisan: “Unitary across Republican administrations, right. Democratic administrations don't get any of it.” – Leah Litman (24:06)

• How Far Will SCOTUS Go?

  • The Court added a sweeping second question: whether federal courts can ever block a removal from public office—a move that could eliminate judicial remedies for unlawful firings, further consolidating presidential power.

• Kagan's Dissent & Historical Perspective:

  • The hosts share Kagan’s blistering dissents:
    • “The majority’s order allows the President to overrule Humphreys by fiat.” (26:33)
    • “Today's order favors the President over our precedent.” (26:33)
    • “The impatience to get on with things—to now hand the President the most unitary, also the most subservient administration since Herbert Hoover...Just note...Herbert Hoover is like the worst president ever.” – Melissa Murray (29:49)

• Wit & Wordplay:

  • “[Humphrey’s Executor will be] executed" / "court slaughters precedent…" – Leah Litman (32:05)

3. National Republican Senatorial Committee v. Federal Election Commission (Campaign Finance)

Main Discussion: 34:41–44:49

• The Challenge:

  • The Court is reviewing the “anti-coordination” rule—the last shreds limiting how much parties and candidates can coordinate spending, preserving at least a nominal defense against money-driven political corruption.
  • “Isn't it awesome to allow the super rich to have more power to influence elections in government? Can we do more of that? And the answer will undoubtedly be of course you can.” – Melissa Murray (35:59)

• Context:

  • Hostile environment for campaign finance regulation post-Citizens United and McCutcheon; concern for further loophole expansion.

• Mocking Deregulation:

  • “The limit does not exist!” – Leah Litman/Melissa Murray (37:14–37:18, quoting Mean Girls)

• Legal Technicalities & Standing Problems:

  • A notable amicus, Roman Martinez, raises that current petitioners have no live controversy or immediate risk of enforcement—which could be an “off ramp” for the Court to punt.
  • Kate: “...no threat of enforcement...so it would be, I think, kind of preposterous for the court to reach out and decide this case anyway...” (43:39)

4. Jurius Orellano v. Pamela Joe Bondi (Immigration, Deference, Chevron Aftermath)

Main Discussion: 44:49–47:29

• Issue:

  • Will Courts treat certain immigration decisions as “questions of law” (independent review) or “questions of fact” (deferential review)? The answer impacts how much latitude the Executive has to interpret and apply asylum law.

• Chevron Context:

  • After the Loper Bright decision overruling Chevron, the boundaries on agency discretion remain unclear.
  • “This decision may provide some insight into when, whether, and in what kinds of cases the court might say Congress has permissibly vested more authority...in administrative agencies versus courts.” – Kate Shaw (47:01)

Other Noteworthy Cases

Quick Previews: 49:06–51:56

• Ham v. Smith: Death penalty, intellectual disabilities, and cumulative IQ testing under Atkins v. Virginia.
• Olivier v. Brandon: Federal courts doctrine—can you challenge state criminal processes via Section 1983 vs. habeas.
• FS Credit Corp. v. Saba Capital Master Fund: Private right of action under the Investment Company Act.
• Cox Communications v. Sony: Standards for contributory copyright infringement and willfulness.

Legal News and Memorable Courtroom Drama

Clowntown Update – DOJ Indictments Derailed

Discussion: 52:27–59:00

• A judge tossed indictments against Jim Comey and Letitia James because "prosecutor" Lindsay Halligan was unlawfully appointed (“a former White House aide with no prior prosecutorial experience…”) (52:27).

• The court’s opinion is lampooned as exceptionally well-cited—“This is how you do it, folks. We are all Judge Jerry Smith now.” – Melissa Murray (54:32)

  • Notable dig: “[Halligan is] basically some private citizen off the street, barely. Not even a lawyer. Not maybe not even a lawyer, attorney or not.” – Melissa Murray/Leah Litman (57:21–57:29)

• The legal bar for interim U.S. attorney appointments, statutory interpretation (with nods to Scalia and Alito), and implications for Trump’s legal maneuvers.

Executive Branch Updates

Timeline: 61:52–63:46

• Allegations of bribery and pardons (“$960,000 to help him secure a pardon” via right-wing lobbyists) surface—“I seem to recall a hypothetical floated in the immunity opinion about taking a bribe in exchange for a pardon. But I'm sure that can't be what's happening here…” – Leah Litman (62:53)
• The administration sues California over mask bans for law enforcement, raising federal preemption concerns.

Human Cost of State Abortion Bans

Timeline: 63:46–65:15

• Hosts highlight ProPublica’s reporting on deaths caused by draconian abortion bans (Tierra Walker’s story), underscoring the human cost of restrictive policies.
• “These are the consequences of these abortion bans. They do not allow doctors to actually counsel patients with high risk pregnancies and complications to receive the kind of care that they need.” – Leah Litman (64:20)

Justice Lindsay Miller Lerman’s Retirement

Timeline: 65:15–66:33

• Celebrating the first woman on the Nebraska Supreme Court, who delivered memorable parting words:
  • “I took an oath and I think I kept my promise.”
  • “I feel I've made a contribution. I'm not sure more years is necessarily going to enhance that. So for those of you just holding on to power, sitting in your seat, think about it. You can do other things. You can make room for other people, people.” – Melissa Murray quoting Justice Miller Lerman (65:15)

Favorite Things

Timeline: 66:33–69:40

• Tatiana Schlossberg’s “A Battle with My Blood” (New Yorker), Death by Lightning on Netflix (administrative state origin drama), and the Studio Museum in Harlem (“absolutely gorgeous”) recommended.
• Cookbook: Now and Again by Samin Nosrat.

Notable Quotes & Memorable Moments

• “This is the sitting where the court doubles down on its BS.” – Melissa Murray (34:41)
• “The Unitary Executive theory gets ghosted during Democratic administration, but it's back in full flower.” – Melissa Murray (23:52)
• On campaign finance: “Tis the season to buy a candidate. Yeah, you can just put it in your stocking. It’s the gift everybody wants anyway.” – Melissa Murray (41:24)
• “The limit does not exist.” – Leah Litman/Melissa Murray (37:14, quoting Mean Girls)
• “Abortion distortion” [as an explanatory concept for the Court’s unique treatment of abortion-related cases] – recurring

Structure of the December SCOTUS Sitting (Timestamps)

1. First Choice Women's Resource Centers v. Platkin (Abortion/First Amendment/Federal Courts)

03:57–16:46

2. Trump v. Slaughter (Unitary Executive, Removal Power)

18:17–34:41

3. Nat’l Republican Senatorial Comm. v. FEC (Campaign Finance)

34:41–44:49

4. Orellano v. Bondi (Immigration/Agency Deference)

44:49–47:29

Other Notable Cases (summarized quickly):

49:06–51:56

Legal News, Executive Power, and Courtroom Drama

52:27–63:46

Social and Cultural Segments (retirements, favorite things, merch, live shows)

65:15–70:45

Concluding Thoughts

This episode underscores the hosts' central warning: the Supreme Court is entrenching a legal regime that elevates executive and right-wing interests, often by gutting precedents, privileging certain parties, and ignoring or contorting standing and justiciability doctrines. The tone is witty, sometimes resigned, but deeply informed; the closing segments balance the heavy legal fare with recommendations and heartfelt acknowledgment of legal milestones and obstacles ahead.

For listeners and non-listeners alike, this summary distills legal significance, political context, and the episode's undeniable energy.