Strict Scrutiny Podcast Summary

Episode: Deportations and the Death of Due Process
Release Date: March 24, 2025
Host/Author: Crooked Media
Description: Strict Scrutiny provides in-depth, accessible, and irreverent analysis of the United States Supreme Court and its surrounding legal culture. Hosted by constitutional law professors Leah Litman, Kate Shaw, and Melissa Murray, the podcast breaks down the latest Supreme Court headlines and significant legal questions impacting daily life.

1. Introduction to the Episode

Hosts:

• Leah Litman
• Kate Shaw
• Melissa Murray (Absent this episode)

The episode delves into the Trump administration's heightened efforts to bypass judicial scrutiny, particularly focusing on the invocation of the Alien Enemies Act for mass deportations. The hosts also preview upcoming Supreme Court cases and discuss the broader implications of the administration's actions on civil rights and the legal framework.

2. Trump Administration's Use of the Alien Enemies Act

Key Discussion Points:

• Alien Enemies Act (AEA): A 1798 statute traditionally used during declared wars (War of 1812, WWI, WWII) to deport foreign nationals deemed threats.
• Recent Invocation: Last Friday (prior to recording), the Trump administration invoked the AEA to target members of a gang called Tren de Aragua (TDA), labeling them as a "hybrid criminal state" posing significant danger to the U.S.

Notable Quotes:

• Kate Shaw [02:09]: “She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”
• Leah Litman [05:14]: “The administration could arrest, detain and remove all... Venezuelan citizens 14 years of age or older who are members of TDA…”

Concerns Raised:

• Due Process Violations: Individuals are being deported without clear definitions of eligibility or connection to their country of origin.
• Humanitarian Issues: Reports from the Washington Post and Miami Herald highlight the harsh realities, including individuals being expelled to El Salvador prisons without due process.

Notable Quotes:

• Leah Litman [08:56]: “A face of pain and a fear.”
• Kate Shaw [09:49]: “It’s just in our names, at the hands of United States authorities.”

3. Judicial Response and Temporary Restraining Order

Key Events:

• Temporary Restraining Order (TRO): Issued by Judge Boasberg in the D.C. District Court to block the administration from enforcing the AEA-based deportations.
• Administration's Stance: Claims that planes already in international waters were not subject to the TRO and questions the binding nature of oral orders.

Notable Quotes:

• Leah Litman [10:40]: “They are just projecting, you know. Right.”
• Kate Shaw [14:02]: “Huge kudos to the organizations, which include both the ACLU and also Democracy Forward…”

Discussion Highlights:

• Compliance Issues: The administration's ambiguous responses and partial compliance with the TRO raise significant legal and ethical questions.
• Potential for Non-Compliance: The hosts express fear that the administration is edging closer to outright non-compliance, signaling a constitutional crisis.

Notable Quotes:

• Leah Litman [16:45]: “As to the plane that took off after the order, the administration has said the individuals… were not deported under the Alien Enemies act, but under some other legal authority.”
• Kate Shaw [19:06]: “I mean, Samuel Alito is going to write that loud and proud.”

4. Supreme Court Leadership and Chief Justice John Roberts' Statement

Key Events:

• Chief Justice Roberts' Statement: In response to Trump's call for the impeachment of Judge Boasberg, Roberts emphasized that impeachment is not an appropriate response to judicial decisions.

Notable Quotes:

• Chief Justice Roberts [24:06]: “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision.”

Hosts' Perspectives:

• Leah Litman [24:38]: Critiques Roberts for not taking a stronger stand against the administration's overreach, referencing his past opinions that may have emboldened executive power.
• Kate Shaw [27:34]: Expresses skepticism about whether Roberts' statement signifies meaningful institutional checks or is merely superficial.

Notable Quotes:

• Leah Litman [28:55]: “His entire game is like making the court look legitimate and then basically knifing the country in the process.”

5. Upcoming Supreme Court Cases Preview

Key Cases Discussed:

• Louisiana v. Calais:
  Issue: Whether Louisiana violated the Voting Rights Act by redrawing congressional districts that diluted black voters' political power.
  Current Status: Lower courts deem the maps as unconstitutional racial discrimination despite compliance with the Voting Rights Act.

• Oklahoma v. EPA & EPA v. Calumet Shreveport Refining:
  Issue: Whether challenges to EPA actions must be filed in the D.C. Circuit or can be brought before other Circuit Courts.
  Significance: Impacts the administrative state and the power dynamics between agencies and the judiciary.

• Care v. Planned Parenthood South Atlantic:
  Issue: Whether private individuals can sue to challenge a state's decision to exclude Planned Parenthood from the Medicaid program.
  Implications: Affects reproductive rights and the funding mechanisms for healthcare providers.

• FCC v. Consumers Research & Catholic Charities Bureau v. Wisconsin Labor and Industry Review Commission:
  Issues:

  • FCC v. Consumers Research: Reviving the non-delegation doctrine to limit administrative agency powers.
  • Catholic Charities Bureau v. Wisconsin: Whether states must financially support religious organizations that challenge state laws.

Notable Quotes:

• Kate Shaw [31:06]: “So Calumet is about whether challenges that seek exemptions from renewable fuel standards have to go to the D.C. circuit.”
• Leah Litman [33:54]: “The court said that those motivations, which the court described as racial motivations predominated in the legislature's districting decision and therefore the map was constitutionally suspect.”

6. Administration's Rollback of Civil Rights and DEI Initiatives

Key Actions:

• Removal of DEI Components: The administration is dismantling diversity, equity, and inclusion (DEI) initiatives across various federal agencies and institutions.
• Targeting Law Firms: Executive orders targeting firms like Paul Weiss and Perkins Coie for their civil rights work, leading to punitive measures such as suspending security clearances and requiring disclosures.
• Suppression of Educational Materials: Deleting links and content related to Black and female veterans from the Arlington Cemetery website, branding them under DEI.

Notable Quotes:

• Melissa Murray [22:52]: “So what is this condition? Pseudofolliculitis barbae or PFB. And guess who? This condition that may soon functionally become disqualifying for military service affects primarily Black individuals.”
• Leah Litman [35:32]: “This is not an effort to remove some program that is in some way harming the military. It is yes, an effort to whitewash history...”

Discussion Highlights:

• Impact on Law Firms:

  • Paul Weiss: Targeted for pro bono work against the administration's policies; reached a capitulatory agreement involving donations to Trump-supported causes.
  • Perkins Coie: Faced similar executive orders demanding compliance and threatening operational restrictions.

• Higher Education Pressure:

  • Columbia University: Agreed to ban masks, empower certain campus police officers, and appoint administrators to oversee specific academic departments to retain federal funding.

Notable Quotes:

• Leah Litman [38:10]: “This is a poison pill designed to reach into Americans' minds and to encourage Americans to believe that those people that they see who are from underrepresented groups, who have achieved success and hold positions of power and authority in our country did not earn those positions.”

7. Non-Delegation Doctrine and the Administrative State

Key Discussion Points:

• Non-Delegation Doctrine: A legal principle that Congress cannot delegate its legislative powers to administrative agencies, potentially curtailing agencies like the EPA, FAA, TSA, HHS, and FDA.
• Supreme Court's Role: The upcoming case FCC v. Consumers Research could reinvigorate this doctrine, leading to a significant reduction in the administrative state's power.

Notable Quotes:

• Leah Litman [60:55]: “It's like, you know, come on, guy, everyone knows what this case is about.”
• Kate Shaw [60:55]: “Help. Sorry, I wish I could edit out in actual time what I just said anyway, but that is essentially what, what is at stake in this non-delegation doctrine debate.”

8. Reproductive Rights and Planned Parenthood

Key Discussion Points:

• Planned Parenthood Cases: The hosts discuss Care v. Planned Parenthood South Atlantic, examining the ability of individuals to challenge state funding decisions that exclude organizations like Planned Parenthood from Medicaid.
• Related Administration Actions:
  • Suing Idaho: Dropped by the administration after state enacts restrictive abortion bans.
  • Texas Midwife Arrest: Highlighting the punitive measures against reproductive health providers.

Notable Quotes:

• Leah Litman [64:31]: “The Trump administration dropped the federal government's lawsuit against Idaho over Idaho's restrictive abortion ban.”

9. State of the Union and Supreme Court Reactions

Key Events:

• Chief Justice John Roberts' Statement: In response to Trump's call for Judge Boasberg's impeachment, Roberts reaffirmed the appropriate channels for addressing judicial disagreements.
• Justice Clarence Thomas' Involvement: During oral arguments in related cases, Thomas emphasized adherence to statutory venue provisions, indirectly criticizing attempts to manipulate court venues for favorable outcomes.

Notable Quotes:

• Kate Shaw [72:56]: “Justice Kennedy said, I love what you're doing. Do more of it.”
• Leah Litman [73:00]: “Justice Kennedy is the person who voluntarily retired under Donald Trump with a Republican Senate that cleared the way for Republicans to basically take over ideological control of the Supreme Court.”

10. Impact on Higher Education and Institutional Integrity

Key Discussion Points:

• Executive Orders Affecting Universities:
  • University of Pennsylvania: Threatened with freezing funds unless certain policies are adopted, including banning masks and altering academic oversight.
• Legal Challenges: Judges are increasingly blocking administration efforts to enforce punitive measures on educational institutions, citing constitutional concerns.

Notable Quotes:

• Kate Shaw [62:33]: “It's largely the anti-diversity and any kind of racial equity and sort of grievance agenda.”

11. Recommendations and Further Reading

Hosts' Book Recommendations:

• Leah Litman: How the Supreme Court Runs Unconservative Grievance, Fringe Theories, and Bad Vibes – Explores the Supreme Court's role in shaping ideological narratives and its alignment with conservative politics.

Suggested Articles:

• Rebecca Traister (The Post): Fight, Fight, Fight – Discusses the Congressional resolution debates.
• M. Gessen (New York Times): Hidden Motive Behind Trump's Attacks on Trans People – Analyzes the administration's strategies against the transgender community.
• Kate Shaw (New York Times): This Election Will Be a Crucial Test of Musk's Power – Examines Elon Musk's influence on the Wisconsin Supreme Court election.
• Daphna Renan & Jesse Hoffnung Garskoff (Chronicle of Higher Education): The Dangerous Document Behind Trump's Campus Purges – Investigates the administration's Project Esther and its impact on higher education.

Notable Quotes:

• Leah Litman [79:03]: “So that is a real fucking mystery, Clarence, why people care about where litigants can file.”

12. Conclusion and Upcoming Events

Live Shows:

• Upcoming Dates:
  • May 31st in Washington D.C. at Capitol Turnaround
  • June 12th in New York City at Sony Hall
  • October 4th in Chicago at Athenaeum Center

New Podcast Launch:

• Shadow Kingdom: God's Banker: A true-crime drama exploring the mysterious death of Roberto Calvi, tied to the Vatican, Mafia, and Catholic Church.

Final Remarks:
The hosts emphasize the urgency of addressing the administration's overreach and the Supreme Court's pivotal role in either upholding or dismantling key legal protections. They encourage listeners to engage with the legal system, support affected individuals and institutions, and stay informed through recommended readings and upcoming episodes.

Notable Quotes Summary:

• Kate Shaw [02:09]: “She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”
• Leah Litman [05:14]: “The administration could arrest, detain and remove all… Venezuelan citizens 14 years of age or older who are members of TDA…”
• Leah Litman [28:55]: “His entire game is like making the court look legitimate and then basically knifing the country in the process.”
• Kate Shaw [62:33]: “It's largely the anti-diversity and any kind of racial equity and sort of grievance agenda.”
• Kate Shaw [72:56]: “Justice Kennedy said, I love what you're doing. Do more of it.”

Disclaimer: This summary is based on the provided transcript of the Strict Scrutiny podcast episode titled "Deportations and the Death of Due Process." It aims to encapsulate the key discussions, insights, and conclusions presented by the hosts while omitting advertisements and non-content segments.