Strict Scrutiny Podcast Summary: "Ketanji Brown Jackson Sounds the Alarm"
Release Date: June 23, 2025

Strict Scrutiny, hosted by constitutional law experts Leah Litman, Kate Shaw, and Melissa Murray of Crooked Media, delves deep into the complexities of the United States Supreme Court, its cases, culture, and the broader legal landscape. In the episode titled "Ketanji Brown Jackson Sounds the Alarm," the hosts navigate through pressing legal issues, recent Supreme Court decisions, and the evolving dynamics within the judiciary.

1. Use of Force and Constitutional Balance

Leah Litman opens the discussion by addressing the alarming announcement from "Donald the Dove" about bombing Iran, highlighting concerns over unilateral presidential actions. To unpack the legal intricacies of this situation, Beck Ingber, a Professor of Law at Cardozo Law School and former Counselor on International Law at the Department of State, joins the conversation.

Key Points:

• War Powers Resolution of 1973: Established to reinstate Congressional authority over declaring war, limiting presidential unilateral military actions. Beck Ingber explains, “Congress wanted to reset the constitutional balance of powers...” ([04:09]).

• Administration’s Legal Arguments: The current administration claims justification under self-defense and collective self-defense. However, Ingber emphasizes the narrow conditions under which force can be used legally, questioning the imminence and necessity of the alleged threat from Iran ([05:39]-[08:30]).

• Presidential Overreach: Ingber criticizes the administration for potentially acting on "vibes rather than facts," suggesting a degradation of legal and constitutional safeguards ([12:24]-[17:37]).

2. Supreme Court Decisions and the Fifth Circuit

The episode shifts focus to recent Supreme Court rulings, particularly those involving the Fifth Circuit Court of Appeals, often criticized for its controversial decisions.

Key Cases Discussed:

• Nuclear Regulatory Commission v. Texas ([30:28]-[33:17]): A 6-3 decision authored by Justice Kavanaugh reversed the Fifth Circuit’s ruling, preventing private entities from challenging long-standing nuclear waste storage licenses. Steve Vladek notes, “The Fifth Circuit had relied upon a really preposterous application of the major questions doctrine” ([31:38]-[33:06]).

• EPA vs. Calum Shreveport Refining and Oklahoma v. EPA ([34:00]-[35:24]): The Supreme Court introduced a two-step test to determine the nationwide or regional applicability of EPA actions, aiming to curb forum shopping by litigants ([35:24]-[36:29]).

• FDA vs. R.J. Reynolds ([40:30]-[41:57]): A 7-2 decision allowing entities to choose where to challenge FDA orders, potentially favoring corporate interests and exacerbating litigation trends in the Fifth Circuit. Beck Ingber articulates concerns over “forum shopping” enabling litigants to target favorable jurisdictions ([40:30]-[42:08]).

Justice Jackson’s Dissent:

• Critique of Judicial Favoritism: Beck Ingber highlights Justice Jackson's dissent, where she warns against the Court appearing to favor corporate interests, stating, "I worry that the fuel industry's gain comes at a reputational cost for this court..." ([53:10]-[55:40]).

3. Fetal Personhood and Abortion Rights

Delving into reproductive rights, the hosts examine the burgeoning legal theories advocating for fetal personhood, threatening to overturn established precedents like Roe v. Wade.

Key Discussions:

• District Judge Matthew Kacmyrick’s Ruling ([79:16]-[81:17]): Striking down Biden’s HIPAA rule protecting reproductive health information, citing fetal personhood under the Dictionary Act. Beck Ingber elaborates, “Fetal personhood is the legal theory that would declare abortion itself unconstitutional...” ([78:24]-[81:08]).

• New York's Reproductive Health Act Challenge ([82:53]-[83:05]): Republican-appointed judges in the Second Circuit provide a “roadmap” for plaintiffs to establish fetal personhood, signaling a strategic push against abortion rights nationwide ([82:53]-[83:05]).

4. Sex Stereotyping in Judicial Proceedings

The episode explores the detrimental effects of sex stereotyping in legal judgments through the case of Brenda Andrew, who was convicted based on prejudiced assumptions about her behavior.

Key Highlights:

• Brenda Andrew’s Case: The prosecution used sexual history and stereotypes to justify her guilt. The Supreme Court's decision allowed the case to be reconsidered, recognizing the unconstitutional nature of such biases ([85:51]-[86:27]).

• Judicial Reactions: Beck Ingber emphasizes the need for the judiciary to move beyond ingrained stereotypes, advocating for unbiased interpretations of equal protection clauses ([85:51]-[86:27]).

5. Judicial Nominees and the 2020 Election Legitimacy

A concerning trend is highlighted where Trump-appointed judicial nominees avoid acknowledging the legitimacy of the 2020 presidential election results during Senate confirmations.

Key Insights:

• Nominee Responses: All five Trump nominees stated, “President Biden was certified as the winner,” avoiding any commentary that could imply questioning the election's integrity.

• Implications for Judicial Independence: Beck Ingber warns that this trend undermines the judiciary's role as an impartial arbiter, potentially paving the way for future electoral disputes to be settled through the courts rather than democratic processes ([90:38]-[94:56]).

6. Conclusion: Upholding Democratic Principles

The hosts conclude by emphasizing the critical role of the judiciary in maintaining democratic norms and the importance of public vigilance against judicial overreach and favoritism. They advocate for active public engagement and demand accountability from both Congress and the courts to safeguard constitutional balances.

Notable Quote:

• Beck Ingber: “We have to make sure that should those guys try that stuff, we're aware of the anti-democratic forces trying to lock the voice of the people out of their own self-determination.” ([94:56]-[95:55])

Final Thoughts:

In "Ketanji Brown Jackson Sounds the Alarm," Strict Scrutiny effectively navigates through intricate legal debates, shedding light on the precarious state of judicial independence, the manipulation of legal frameworks for political ends, and the ongoing threats to established constitutional protections. The episode serves as a clarion call for vigilance and informed advocacy to preserve the integrity of the U.S. legal system.