Strict Scrutiny – "Looking for Bright Spots in the Courts"

Podcast: Strict Scrutiny (Crooked Media)
Date: September 22, 2025
Hosts: Leah Litman, Kate Shaw, Melissa Murray
Guests: Sky Perryman (President & CEO, Democracy Forward), Sherrilyn Ifill (Howard University; former NAACP LDF President)

Episode Overview

This episode zeroes in on the nuanced and often fraught dynamics between the Supreme Court, lower federal courts, and the current presidential administration, spotlighting both ongoing crises and unexpected bright spots. Special attention is paid to the recent activism of lower courts challenging the Supreme Court’s "shadow docket," the administration’s aggressive assertion of executive power, and troubling legal tactics in high-profile litigation. The episode then transitions to a hope-filled, thoughtful celebration of Justice Ketanji Brown Jackson’s (KBJ) growing influence and distinctive voice on the Court, with a rich discussion featuring civil rights stalwart Sherrilyn Ifill.

Key Discussion Points & Insights

1. Lower Courts Pushing Back Against the Supreme Court's Shadow Docket

Guest: Sky Perryman
Segments: [03:00]–[19:05]

• The Supreme Court’s use of the “shadow docket” to stay lower court decisions—often without explanation—has left lower courts in bureaucratic limbo but hasn’t silenced them.
• Recent Case Highlight: A district court called the administrative record in a mass federal agency layoff case a “sham” and forced personnel record corrections, despite the Supreme Court allowing layoffs to proceed.
  Notable Quote:
  • "The district courts in this country are really doing the work ... and so this, I think, is significant." – Sky Perryman [05:33]
• Judges are openly expressing frustration about the Supreme Court’s refusal to explain itself. First, Fourth, and Ninth Circuits have all recently denied government stay requests, pointedly noting that opaque Supreme Court orders leave them unclear as to applicable law. Notable Quotes:
  • "Courts don't get to exist in a democracy unless they're operating in a transparent way...They have to explain what they're doing." – Sky Perryman [12:39]
  • "I read this language as like a preemptive—get our names out of your mouths, Neil Gorsuch and Brett Kavanaugh..." – Leah Littman [14:08]

2. Lower Court Accountability and the Supreme Court’s Constraints

Segments: [19:05]–[22:03], [23:38]–[26:30]

• Lower courts are still holding the executive accountable, even as they encounter manipulation (e.g., government misrepresentations, legal evasions).
• The district court bench serves as a critical check, surfacing facts and abuses often overlooked by higher courts. Notable Quote:
  • "These things do matter. The public pressure is—we've secured so many wins, not just from courts, but from the administration backing down in some of these cases" – Sky Perryman [09:19]
• There are concerns about the Department of Justice's recurring misrepresentations in court—behavior which, in normal circumstances, could result in contempt or discipline, but which sees little Supreme Court enforcement. Notable Quote:
  • "You're supposed to...be held in contempt. And...referred for discipline." – Sky Perryman [25:25]

3. The Unitary Executive Theory and Its Real-World Consequences

Segments: [28:51], [29:08]–[45:22]

• The administration’s insistence on the “unitary executive theory” has scaled up, with the President claiming sweeping powers and using personnel decisions to punish perceived disloyalty.
• Examples cited include:
  • Attempts to influence FCC actions and punish dissenting media
  • Pressure to prosecute political opponents
  • Firing of civil servants, including high-profile figures, via Article II justifications
  • Efforts to remove Federal Reserve Governor Lisa Cook
• Supreme Court deference to presidential motives—the assertion that motives “don’t matter”—has made these abuses easier. Notable Quotes:
  • "It's almost as if the court’s majority says: as long as the President is doing it, motives don’t matter. The law can’t touch him in those circumstances." – Leah Littman [39:47]
  • "We've seen this manifest in a range of ways, and it's becoming sloppier and sloppier...the theory that the Department of Justice is now peddling is so...boundless." – Sky Perryman [41:02]

4. Legal Drivel and Presidential Abuse of Courts & Media

Segments: [45:22]–[49:17]

• The Trump administration’s predilection for frivolous, punitive, and performative litigation—such as a $15B “defamation” suit against the New York Times—reflects a broader strategy to intimidate critics and normalize attacks on the press. Notable Quote:
  • "These things are not normal and they're unlawful on their face, and yet the president's trying to do these types of things to normalize [intimidation]." – Sky Perryman [47:25]

5. Bright Spot: Justice Ketanji Brown Jackson’s Style and Impact

Segments: [52:26]–[102:04]

Why Justice Jackson Stands Out

• Justice Jackson is lauded for her fearlessness, deep preparation, and refusal to accept narrow, conservative frameworks as “natural.” Notable Quotes:
  • "She has a seat at the table now and she's ready to work." – Leah Littman [56:03, paraphrased from KBJ]
  • "I find her to be fearless ... she understands the public role that she plays, the power of her voice." – Sherrilyn Ifill [54:22]

Oral Argument Brilliance

• KBJ’s hypotheticals (e.g., the “legacy vs. Black applicant” in SFFA v. UNC, It’s a Wonderful Life in 303 Creative) cut to the heart of exclusion and equal protection. Notable Quotes:
  • "I love it when I can tell she's annoying the Chief..." – Sherrilyn Ifill [57:56]

Statutory & Constitutional Interpretation

• Jackson is comfortable with both textualism and broader interpretive approaches, challenging the notion that textualism or originalism automatically yields conservative outcomes. Notable Quotes:
  • "You want textualism? I got textualism." – Sherrilyn Ifill [62:05]
  • "Who's afraid of congressional purpose and legislative history? Not Justice Jackson." – Leah Littman [63:20]

Willingness to Call Out the Court

• KBJ uses her opinions to publicly challenge the Court's directions, illuminate broader projects, and stand up for trial courts. Notable Quotes:
  • "This is a project ... you've got to see this all together. This is a project." – Sherrilyn Ifill [99:41]
  • "She's calling them out in no uncertain terms. And again, doing it often in defense of the lower courts." – Melissa Murray [74:41]
  • "The language, the tone, the substance, she's telling us in a million different ways that there's no other explanation for what's happening here than the obvious." – Sherrilyn Ifill [86:09]

Dynamics with Justice Clarence Thomas

• Compelling discussion of the intergenerational, intra-racial tension between Justices Jackson and Thomas, especially evident in cases like SFFA v. Harvard. Notable Quotes:
  • "There are a whole cadre of Black people...who get a lot of their cachet from being the only one in the room...but there are certain people, particularly Black conservatives, who enjoy that." – Sherrilyn Ifill [93:36]
  • "All of the things...that he peddled that we're supposed to give him greater legitimacy to be able to talk about how it really is for Black people has kind of been usurped by Justice Jackson." – Sherrilyn Ifill [97:41]

KBJ’s Commitment to Public Education and Demystifying the Court

• Justice Jackson is deliberate about using her public platform to educate, name harmful Court “projects,” and bring hidden legal realities into the open.

Timestamps for Notable Segments

• [03:00]–[19:05]: Lower courts' pushback on the shadow docket and district court activism
• [22:03]–[26:30]: Trump administration legal tactics and lower court refusals to back down
• [28:51], [29:08]–[45:22]: Unitary executive theory and its chilling implications
• [45:22]–[49:17]: Presidential intimidation suits and normalization of abuses
• [52:26]–[102:04]: Justice KBJ’s impact (with special guest Sherrilyn Ifill)
  • [54:22] Ifill on Justice Jackson’s fearlessness
  • [62:05] Ifill on Jackson’s muscularity in statutory interpretation
  • [65:32] Ifill on originalism and the 14th Amendment
  • [74:41] Melissa on KBJ defending lower courts
  • [86:09] Ifill on why KBJ’s dissents are “sounding the alarm”
  • [93:36][97:41] Ifill on the Thomas–Jackson dynamic

Notable Quotes

• "The district courts in this country are really doing the work ... and so this, I think, is significant." – Sky Perryman [05:33]
• "Courts don't get to exist in a democracy unless they're operating in a transparent way...They have to explain what they're doing." – Sky Perryman [12:39]
• "You want textualism? I got textualism." – Sherrilyn Ifill [62:05]
• "There is a way in which [Jackson] is not willing to pretend that there's not a project at work ... you've got to see this all together. This is a project." – Sherrilyn Ifill [99:41]
• "The language, the tone, the substance, she's telling us in a million different ways that there's no other explanation for what's happening here than the obvious." – Sherrilyn Ifill [86:09]
• "All of the things...that [Clarence Thomas] peddled that we're supposed to give him greater legitimacy to be able to talk about how it really is for Black people has kind of been usurped by Justice Jackson." – Sherrilyn Ifill [97:41]

Memorable Moments

• [05:33] Sky Perryman effusively praises the resilience and diligence of lower federal courts amid top-down pressure.
• [14:08] Leah and Sky’s sardonic riff about circuit courts getting “our names out of your mouths, Neil Gorsuch and Brett Kavanaugh.”
• [57:56] Sherrilyn Ifill gleefully recounts the times KBJ visibly irritates the Chief Justice and Justice Gorsuch with her incisive questioning.
• [86:09] Ifill admits that reading KBJ’s dissents actually scared her: “They're sounding the alarm that what you think is happening is, in fact, happening.”
• [90:57] Sherrilyn and Melissa on the unique and palpable tension between Justices Thomas and Jackson.

Conclusion & Bright Sparks

Despite the Supreme Court enabling questionable executive activities and eroding judicial norms, the episode highlights resilience: lower courts taking a stand, whistleblower activity, public exposure of abuse, and Justice Jackson’s assertive leadership. Justice KBJ emerges as a model for public education, legal clarity, and speaking truth to power—offering hope and direction.

Hosts' "Favorite Things" ([102:21])

• Sky Perryman: Recommends seeing Sierra Ferrell live; highlights the importance of soul-lifting experiences and the Democracy Forward double-vinyl album.
• Leah Littman: Suggests the TV series “The Summer I Turned Pretty,” Ta-Nehisi Coates’s Vanity Fair piece, and NYC pastry shops Myelin and L’Appartement 4F.
• Kate Shaw (in absentia): Reminds listeners to vote in the crucial upcoming Pennsylvania Supreme Court judicial retention election.

For more:

• Listen to the full episode for an in-depth, unvarnished take on current judicial struggles and rays of hope.
• Follow @StrictScrutiny for continuing legal commentary.