Strict Scrutiny Podcast Episode Summary Title: How Will Trump 2.0 Embolden SCOTUS to Gut the Law?
Release Date: November 25, 2024
Host/Authors: Leah Litman, Kate Shaw, Melissa Murray
Guest: Judge David Tatel, retired judge from the D.C. Circuit Court of Appeals

1. Election Updates and Attorney General Nomination (00:41 - 14:20)

In this segment, the hosts delve into the tumultuous week surrounding the nomination for the Attorney General position. Initially, Matt Gaetz was a frontrunner, but following mounting controversies—referred to colloquially as "Gatesgate"—he withdrew his nomination amidst ethical investigations.

Kate Shaw recaps:

"Our would-be Attorney General decided that his nomination had become too much of a distraction for the new administration. So he withdrew his name."
(03:11)

The spotlight then shifts to President-elect's announcement of nominating Pam Bondi, former Florida Attorney General and Trump impeachment defense counsel, as his candidate. The discussion highlights the political dynamics and potential implications of this nomination.

Judge David Tatel comments on the week's outcomes:

"Matt Gaetz lost the week. We didn't even talk about the Ethics Committee's investigative report that was supposed to come out."
(05:18)

Melissa Murray emphasizes the role of journalism in holding administrations accountable:

"The free press is just enormously important."
(07:42)

2. Department of Justice Appointments and Emerging Concerns (15:16 - 24:20)

The conversation transitions to the broader implications of the new administration's appointments within the Department of Justice (DOJ). The hosts express concern over the potential for these roles to serve more as the President's personal defense counsel rather than impartial servants of the law.

Kelly Shaw notes:

"These are really important positions. And they're effectively going to be staffed by people who are essentially the President's defense counsel."
(07:42)

Judge Tatel discusses the shift in DOJ's focus:

"This department is, before our very eyes, being transformed into a public defender, maybe slash prosecutor for this president."
(07:42)

3. Anticipated Legal Shifts and SCOTUS's Future Actions (25:11 - 41:29)

In this critical segment, the hosts analyze how the incoming administration and a potentially emboldened Supreme Court (SCOTUS) might influence various areas of law:

• Administrative Law:
  The potential revival of the non-delegation doctrine could grant the President increased authority over federal agencies, diminishing Congress's role. Kate Shaw explains:

  "They could give Presidents greater control over removing officials at the FTC, the FEC, the SEC, and possibly the Federal Reserve."
  (20:22)

• Schedule F and Federal Employment:
  The reissuance of Trump's Schedule F executive order could allow broader political appointments within the federal government, undermining the merit-based civil service system. Judge Tatel warns:

  "This is a court that's primed to say, yeah, 100%."
  (25:40)

• First Amendment and Equal Protection:
  The hosts predict further erosion of civil rights protections, particularly for the LGBTQ+ community, through expanded First Amendment exceptions and challenges to affirmative action policies. Melissa Murray asserts:

  "The Supreme Court could continue to expand the First Amendment exceptions to civil rights protections for the LGBTQ community."
  (28:50)

• Campaign Finance Laws:
  With cases like Citizens United already reshaping the landscape, the hosts foresee additional strikes against campaign finance regulations, potentially increasing secrecy and reducing transparency in political financing.
  (29:44)

Judge Tatel emphasizes the gravity of these potential changes:

"We are literally betting a global economy on whether Amy Coney Barrett and Brett Kavanaugh got up that morning and had a good breakfast."
(20:51)

4. Interview with Judge David Tatel: "Vision: A Memoir of Blindness and Justice" (45:45 - 85:32)

The heart of the episode features an in-depth interview with Judge David Tatel, who discusses his newly released memoir, "Vision: A Memoir of Blindness and Justice."

a. Journey to Writing the Memoir

Judge Tatel shares his motivations behind writing the book:

"I was worried then that visual disability would affect my job opportunities... If this book can provide that for young people with disabilities today, then I will feel justified in having written the book."
(46:50)

b. Career Highlights and Shelby County v. Holder

He recounts significant cases from his tenure, notably his involvement in NAACP v. Claiborne Hardware, which affirmed First Amendment rights. He critically examines Shelby County v. Holder, highlighting its detrimental impact on voting rights and democracy:

"The Supreme Court declared that the South had changed and that there was no longer a justification for continuing Section Five preclearance."
(71:37)

Judge Tatel critiques the Supreme Court's departure from established doctrines:

"The whole opinion is about state autonomy, state federalism. That's the focus of the case."
(75:29)

c. Reflections on Judicial Philosophy and Retirement

He discusses his judicial philosophy, rooted in judicial restraint and adherence to precedent, and how recent Supreme Court decisions influenced his decision to retire:

"My concern about this court is that that's no longer the case."
(76:36)

d. Personal Life and Guide Dog Vixen

Judge Tatel warmly describes his guide dog, Vixen, illustrating the profound personal and professional impact of navigating life with blindness:

"Vixen has given us here in the country just a huge amount of independence."
(79:38)

He expresses gratitude for the support in writing his memoir and the role Vixen played in embracing his identity:

"Having Vixen has made me far more comfortable being open about my blindness and talking about it."
(84:58)

5. Positive Developments and Future Outlook (34:52 - 41:29)

Amidst the bleak analysis, the hosts highlight hopeful developments in the legal landscape:

• Wisconsin Supreme Court Election:
  Focus is placed on the upcoming election that could maintain a progressive majority on the Wisconsin Supreme Court, offering a battleground to counteract conservative shifts:

  "Investing in the Wisconsin Supreme Court election in 2025 seems like a very good place to start."
  (34:52)

• State-Level Wins:
  A favorable decision from a Wyoming trial court found the state's abortion ban unconstitutional under its own constitution, showcasing successful state-level challenges against restrictive laws:

  "There's a surprisingly great decision out of a Wyoming trial court last week."
  (39:05)

6. Conclusion and Closing Remarks

The episode concludes with heartfelt thanks to Judge Tatel, reflections on the podcast's mission to provide critical legal analysis, and encouragement for listeners to engage in upcoming elections and legal battles to safeguard democratic principles.

Judge Tatel adds a personal touch by connecting his professional insights with his personal life, reinforcing the podcast's blend of legal discourse and human interest:

"And so I leave in the morning, Vixen and I leave in the morning and we take the Metro to work."
(83:30)

Notable Quotes with Timestamps

• Press Importance:

  "The free press is just enormously important."
  (07:42)

• Senate's Role:

  "The Senate may also have been a winner this week... holding that line was really enormous."
  (07:42)

• Weaponization of Agencies:

  "We're going to weaponize. And we're not done with that."
  (18:58)

• Impact of Schedule F:

  "The cost of producing milk is now on you."
  (20:22)

• Supreme Court Critique:

  "What struck me... is that appellate courts don't find facts."
  (57:58)

• Shelby County v. Holder Critique:

  "The whole opinion is about state autonomy, state federalism."
  (75:29)

• Personal Reflection:

  "Having Vixen has made me far more comfortable being open about my blindness and talking about it."
  (84:58)

Conclusion

This episode of Strict Scrutiny offers a comprehensive analysis of the current political and legal shifts under the incoming Trump administration, emphasizing the potential empowerment of SCOTUS to undermine established laws. Through insightful discussions and an engaging interview with Judge David Tatel, listeners gain a nuanced understanding of the challenges facing American democracy and the judiciary. The episode underscores the critical role of the press, the importance of strategic elections, and the personal resilience exemplified by Judge Tatel's journey with blindness and justice.