Strict Scrutiny

S7 Ep18: Are You There, God? It’s Me, the Constitution.
Release Date: February 9, 2026
Hosts: Leah Litman, Melissa Murray, Kate Shaw

Episode Overview

This episode dives deep into recent and alarming shifts in constitutional norms, government immigration enforcement, rule of law, and democratic institutions. The hosts, all constitutional law professors, guide listeners through developments spanning the Supreme Court, executive branch, Congress, and broader legal-political culture. With both incisive critique and signature wit, they expose threats to civil liberties, separation of powers, and democracy, as well as highlight acts of resistance and accountability.

Table of Contents

1. Minnesota Immigration Crisis & Judicial Backlash (03:13–18:20)
2. Administrative Subpoenas and DOJ Abuse (15:19–19:46)
3. The Collapse of Local News & WaPo Layoffs (22:52–25:55)
4. Foreign Influence in the White House: UAE, Trump, and Corruption (25:57–28:44)
5. Supreme Court: NDAs, Leaks & The State of the Institution (28:44–33:12)
6. Election Security, Fulton County Raid & Federal Overreach (38:08–44:34)
7. Redistricting Battles: Texas and California (44:54–48:46)
8. Court Wins & The Temporary Protected Status Decision (49:37–54:07)
9. Congressional & Legal Academy Resistance (58:50–61:54)
10. Miscellaneous: DEI Backlash, Clinton Testimony, and Favorite Things (61:54–77:17)

Minnesota Immigration Crisis & Judicial Backlash (03:13–18:20)

• Background & Federal Overreach:
  The Biden administration (sarcasm—hosts note the "change" is a joke) massively surged ICE and federal agents to Minnesota, creating an "occupier’s boot" atmosphere (Bruce Springsteen). [03:41]
• Legal Backlog & Chaos:
  • Federal courts overwhelmed by habeas petitions for detained immigrants:
    "Chris Geidner... identified 253 federal habeas petitions filed just in the month of January 2026 in the District of Minnesota, whereas only six had been filed... January of 2025." – Kate Shaw [07:03]
  • Fifth Circuit issued a decision contradicting over 300 other judicial opinions, allowing blanket mandatory detention – "f those 300 judges." – Leah Litman [04:57]
• On-the-Ground Lawlessness:
  • Warrantless arrests, detentions without probable cause, and ICE told “you don’t need a warrant to arrest someone or enter their home.” [05:04]
  • Staffing crises in DOJ, delays in complying with release orders. [06:40]
• Insider Meltdown:
  DHS's Julie Lee’s candid statement in court:

  “I wish you would just hold me in contempt of court so I can get 24 hours of sleep. The system sucks. This job sucks. I am trying with every breath I have to get you what I need.” (08:14)

• Human Toll:
  • Detainees held in “horrifying conditions,” even with court-ordered releases, pressured to self-deport.

    "[My client] was without food, he was without clean clothes... eating food that he conflated with dog food. People are just being treated like less than human." – Petitioner’s attorney [11:10]

• Judicial Rebuke:
  Chief Judge:

  "If there's a problem in the restaurant, I don't intend to go in the kitchen to try to figure out who makes the bread... all of it is part of the executive branch." [09:13]

• BIA Appeals Shredded:
  DHS moved to expedite and restrict appeals:
  • Cutting BIA appeals from 30 to 10 days, dismissing pending appeals unless Board majority votes to hear them [14:19]

Administrative Subpoenas and DOJ Abuse (15:19–19:46)

• Expansion & Abuse:
  • DHS using administrative subpoenas aggressively, with little oversight.
  • Notable case: Retiree emails DHS with a plea for mercy and is promptly targeted by Google subpoena for all his data.

    “This man is a naturalized citizen... was understandably terrified.” – Kate Shaw [16:10]

  • Administrative subpoenas used against universities and social media in crackdowns on pro-Palestinian speech and dissent.
• Legal Implications:
  • Supreme Court case (First Choice Women’s Resource Centers v. Platkin) may open floodgates for challenging these, but most targets lack resources to fight back.

    “Even if... the administrative subpoena was challengeable, the reality is... so difficult to find information on, it’s still going to be hard to challenge them.” – Leah Litman [18:20]

The Collapse of Local News & WaPo Layoffs (22:52–25:55)

• Washington Post Crisis:
  • “Massive layoffs, something like 30% of its workforce.” – Kate Shaw [22:57]
  • Devastating cuts to foreign and local (Metro) desks, narrowing coverage, worsening news silos and consolidation trends.

    “Local news has suffered a lot over the last decade... many local TV and radio stations being acquired by large corporations like Sinclair.” – Melissa Murray [23:29]

• Petty Resistance:
  • Melissa "counterprograms" by watching Michelle Obama’s Becoming 25 times instead of the Melania doc promoted by Bezos [25:31]

Foreign Influence in the White House: UAE, Trump, and Corruption (25:57–28:44)

• Stunning Pay-for-Play:
  • UAE’s “spy sheikh” secretly bought a 49% stake in Trump’s World Liberty Financial crypto company just before Trump’s second inauguration. $187 million goes to Trump interests.

    “Foreign government official taking a major stake in the United States President's personal family company on the eve of his retaking power.” – Kate Shaw [26:34]

  • Trump payoff follows: US grants UAE access to coveted AI chips.
• Culture of Impunity:
  • “There is zero chance that anyone in the administration will be investigated over this because the alleged beneficiaries were Trump affiliated or bore the last name Trump.” – Leah Litman [28:25]
  • Numbed indignation: “They’re like, this is business as usual.” [28:30]

Supreme Court: NDAs, Leaks & The State of the Institution (28:44–33:12)

• NDAs for Supreme Court Staff:
  • New York Times reports Chief Justice Roberts ordered SCOTUS staff to sign aggressive NDAs after Trump’s reelection (“do not take notes on a motherfucking criminal conspiracy?” – Leah [30:11])
  • NDAs described as “stringer belish,” more about intimidation than legal bite. [30:18]
• Inevitability of Leaks:
  • “NDAs intended to control leaks, promptly leaked... through no less than five separate sources.” – Kate Shaw [31:21]
• Missed Diagnosis:
  • Court’s obsession with leaks over deeper dysfunction:

    “He says the problem is the leaks, not the dysfunctional broken institution.” – Leah Litman [31:37]

• SCOTUS's “But Actually” Energy:
  • Hosts joke about the futility and performativity of Roberts’ moves. [33:10]

Election Security, Fulton County Raid & Federal Overreach (38:08–44:34)

• FBI Raids in Fulton County:
  • Massive federal raid seizes 2020 voting records and ballots, with DNI Tulsi Gabbard on hand—no clear intelligence or law enforcement justification. [38:08]
• Whistleblower Stirring:
  • Unprocessed national security whistleblower report stokes fears of serious breaches involving Gabbard.
• Fed Taking Over Elections?
  • Trump floats federal takeover of election administration—an open constitutional violation. [42:03]

    “The President’s announcement... that he would like the federal government to take over elections. Let me put this differently. He would like the federal government rather than the states, to control elections. Hello, who is this? The Constitution. You would like a word?” – Melissa Murray [42:03]

• SAVE Act Spin:
  • White House tries to limit damage, claiming Trump referred to the SAVE Act (proof-of-citizenship for voting), but comments go further.

Redistricting Battles: Texas and California (44:54–48:46)

• Redistricting Arms Race:
  • Texas mid-cycle gerrymander (Republican advantage), California retaliates with Prop 50 to redraw for Democrats. Both face legal challenges.
• SCOTUS Hypocrisy Watch:
  • Supreme Court briefly, and surprisingly, lets both stand:

    “You get a partisan gerrymander and you get a partisan gerrymander and everybody gets a partisan gerrymander.” – Leah Litman [47:56]

• Sobering Takeaway:
  • Ninth Circuit’s Judge Kenneth Lee even more extreme than Alito in dissent.
  • WARNING: Don’t buy the “Supreme Court stands up to Trump” narrative. [48:46]

Court Wins & The Temporary Protected Status Decision (49:37–54:07)

• Major District Court Victory:
  • DC District Court blocks the end of TPS for Haiti, citing racial motivations by Secretary Kristi Noem.

    “America is open to receive... the oppressed and persecuted of all nations and religions.” – Judge quoting Washington [50:59] “She [Noem] pounds X, formerly known as Twitter.” [54:04]

• Scathing Judicial Rebukes:
  • Court exposes contradictions in government’s humanitarian and policy justifications.

    “This approach is many things. In the public interest is not one of them.” – Judge [52:49] “If you have neither, pound the table. Secretary Noem... pounds X.” [54:04]

Congressional & Legal Academy Resistance (58:50–61:54)

• Shadow Hearings:
  • Dems stage “shadow hearing” for ICE abuse victims. Heartrending testimony:

    “Alia Rahman, a disabled U.S. citizen... was dragged out of her car and brutalized by ICE.” – Kate Shaw [59:00] “Marmar Martinez, Chicago teacher... was shot five times in Chicago by ICE.” [59:06]

• Defunding as Resistance:
  • Congress threatens government shutdown over immigration abuses and calls for rescinding of ICE enforcement memos.
• Legal Academy Pushback:
  • Law professors rally behind Emily Susky, whose deanship was rescinded due to her support for trans students. Statement: “The selection of a law school dean should be guided by academic values... all of which appear to have been subverted.” – Leah Litman [61:54]

Miscellaneous: DEI Backlash, Clinton Testimony, and Favorite Things (61:54–77:17)

• DEI Backlash:
  • Nike investigated by EEOC—allegedly for discriminating against whites, in line with Trump administration’s anti-DEI messaging.

    “This all comes just weeks after the President mused that civil rights resulted in white people being ‘very badly treated.’ Who’s going to tell them about slavery?” – Melissa Murray [63:10]

• Clinton Subpoenas & Transparency Fights:
  • Hillary and Bill Clinton agree to testify before Congress in Epstein hearings—on camera only, highlighting GOP's preference for spectacle over substance. [64:13]
• Favorite Things (“Tiny Acts of Resistance” and Recommendations):
  • Watching Michelle Obama’s Becoming on repeat (petty resistance), Bad Bunny’s Grammy speech, Anne Applebaum’s Atlantic piece on election meddling, This Guy Sucked history podcast, Melissa’s new book The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader, Margaritaville Resort hotel, and more. [67:28–77:17]
  • “Two thumbs up for the Margaritaville Resort, Times Square.” – Leah Litman [69:40]
• Sam Alito’s Book Publicity:
  • Hosts speculate about the timing of Alito’s forthcoming book and possible retirement from the bench. [70:44]
• Pop Culture & Self-Care:
  • Whale documentaries, Sir Ian McKellen’s Colbert performance, social justice op-eds, and “John Slattery film festival” in Melissa’s home.

Notable Quotes & Memorable Moments

• “I wish you would just hold me in contempt of court so I can get 24 hours of sleep. The system sucks. This job sucks. I am trying with every breath I have...”
  – Julie Lee, DHS lawyer (08:14)

• “It is just as perfect a distillation of the Trump administration as I could imagine that asking for the application of principles of common sense and decency gets your ass subpoenaed for all.”
  – Kate Shaw [19:35]

• On Supreme Court NDAs:

  “Is the Chief justice saying, do not take notes on a motherfucking criminal conspiracy?” – Leah Litman [30:11]

• On redistricting hypocrisy:

  “You get a partisan gerrymander and you get a partisan gerrymander and everybody gets a partisan gerrymander.” – Leah Litman [47:56]

• On TPS Haiti decision:

  “Having neither [facts or law]... She pounds X, formerly known as Twitter.” – Judge (54:04)

• Final Take on This Moment:

  “The President’s announcement... that he would like the federal government to take over elections. Let me put this differently. He would like the federal government rather than the states, to control elections. Hello, who is this? The Constitution. You would like a word?” – Melissa Murray [42:03]

Closing Thoughts

The hosts document a government and judiciary in crisis, with significant new abuses of power, threats to democracy and individual rights, but also emergent pathways for resistance and accountability—from Congress, the courts, local media, and the legal academy. Their commentary mixes deep expertise, biting analysis, and humor, leaving listeners informed, alarmed, and inspired.

For Listeners:

• For full context of the stories, details, and recommendations mentioned, see the indicated timestamps.
• The hosts encourage vigilance, civic engagement, and resistance—“Use your ‘but actually’ energy liberally!” [49:30]
• For live engagement, the Strict Scrutiny team will be touring California (see [66:55]).

(Advertisements and sponsorship segments have been omitted for clarity and brevity.)