Strict Scrutiny: Episode Summary – "SCOTUS Enables Government Destruction"

Release Date: July 21, 2025

Overview

In this compelling episode of Strict Scrutiny, hosted by constitutional law professors Leah Litman, Kate Shaw, and Melissa Murray from Crooked Media, the discussion centers on the recent actions of the United States Supreme Court (SCOTUS) that have empowered the executive branch to undertake significant dismantling of federal agencies. The episode delves deep into the implications of SCOTUS's decisions, examines dissenting opinions, and explores the broader impact on American legal culture and mass incarceration.

Executive Branch Actions and SCOTUS Rulings

The episode opens with an analysis of the Trump administration's aggressive moves to gut the Department of Education. Following President Trump's March executive order to close the department and return educational authority to states, several states, local school districts, and teachers' unions filed a lawsuit arguing that such unilateral action violates the separation of powers, the Take Care Clause, and the Administrative Procedures Act.

At [04:21], Kate Shaw summarizes the district court's findings, which determined that the administration's intent was to dismantle the Department of Education without proper authorization. Despite these findings, the Supreme Court intervened at [05:20] by granting the administration a stay on the preliminary injunction, effectively allowing the department's dismantling to proceed without a substantive ruling on the legality of the actions.

Kate Shaw ([05:20]): "The Court has not decided the substantive question of whether the administrative's actions violate the separation of powers or the Take Care clause or the APA."

This decision mirrors previous SCOTUS actions where the Court allows executive measures to proceed swiftly, often without detailed explanations, raising concerns about transparency and accountability.

Justice Sotomayor's Dissent

A significant portion of the discussion focuses on Justice Sotomayor's strong dissent in the Department of Education case. At [07:56], Rachel Barkow highlights Sotomayor's unwavering stance against the majority's decision:

Justice Sotomayor ([07:56]): "The President must take care that the laws are faithfully executed, not set out to dismantle them. That basic rule undergirds our Constitution's separation of powers."

Sotomayor criticizes the majority for enabling the executive branch to override statutory mandates without congressional approval, emphasizing the grave threat this poses to constitutional principles.

Implications on the Department of Education

The episode delves into the practical ramifications of SCOTUS's decision. Rachel Barkow elaborates on how the Department of Education's functions—ranging from managing federal student aid to enforcing anti-discrimination laws—are being transferred to agencies ill-equipped for such tasks, like the Small Business Administration and Health and Human Services. This reorganization threatens to undermine vital educational services, particularly affecting vulnerable populations.

Rachel Barkow ([11:19]): "The services that this agency provides are numerous and have real practical consequences... This is going to have a real, real hit on real people's lives, including some of the most vulnerable people, children in our society."

Patterns of SCOTUS Intervention

The hosts draw parallels between the current Department of Education case and other instances where SCOTUS has facilitated executive overreach without thorough judicial scrutiny. Notably, they reference Allen v. Milligan, where the Court allowed gerrymandered districting maps to stand temporarily, reflecting a pattern of permissive intervention without substantive justification.

Kate Shaw raises questions about the methodologies and motivations behind SCOTUS's shadow docket decisions, suggesting possible biases toward deference to the executive branch.

Kate Shaw ([07:56]): "Maybe they've got jurisdictional objections. Who knows? Because they don't tell us we should be clear."

Emerging Concerns: Firing Federal Officials

The discussion extends to the Trump administration's attempts to fire high-ranking federal officials, including Maureen Comey, and the ongoing consideration of firing Federal Reserve Chair Jerome Powell. Rachel Barkow and Kate Shaw express concerns about the constitutional implications and the potential destabilization of key institutions.

Kate Shaw ([24:38]): "So we don't know whether the letter would remove Powell as chair and designate a new Fed chair or whether it would try to remove Powell from the Fed altogether."

These actions underscore the administration's broader strategy to consolidate power by dismantling or controlling independent agencies, raising alarms about the erosion of checks and balances.

Listener Engagement and Legal Perspectives

The episode addresses a listener's question from Connor Morgan regarding the potential for terminated civil servants to pursue due process claims in federal courts, bypassing the Merit Systems Protection Board (MSPB). The hosts agree that constitutional due process claims should be an avenue for challenging such terminations, especially given the Supreme Court's recent favoring of executive actions that undermine federal agencies.

Leah Litman ([20:50]): "I totally agree with the thrust of this comment slash question."

Conversation with Rachel Barkow: "Justice Abandoned"

A significant segment features a conversation with Rachel Barkow, a professor at NYU Law, discussing her book "Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration". The dialogue explores how SCOTUS has historically contributed to the rise of mass incarceration through decisions that eroded constitutional protections, often overlooked in public discourse dominated by executive and legislative actions.

Rachel Barkow ([35:37]): "We are right now inhabiting a constitutional culture in which it seems like everything is up for grabs and everything can be reconsidered, everything can be reevaluated, maybe even overruled."

Barkow emphasizes the need for coalition-building to challenge and potentially overturn flawed SCOTUS decisions, advocating for a return to originalist interpretative methods to safeguard constitutional rights.

Key Insights and Conclusions

• SCOTUS's Shadow Docket: The Court's permissive stance on executive overreach without substantive explanations raises concerns about the erosion of judicial oversight and the balance of powers.

• Justice Sotomayor's Dissent: Highlights the dangers of allowing the executive branch to dismantle federal agencies unilaterally, emphasizing the critical role of the judiciary in upholding constitutional principles.

• Impact on Federal Agencies: The dismantling of the Department of Education and other agencies has tangible negative effects on public services, particularly for vulnerable populations.

• Historical Role in Mass Incarceration: SCOTUS has played a pivotal role in enabling mass incarceration through decisions that weaken constitutional protections, a factor that is often neglected in mainstream discussions.

• Call to Action: Building coalitions and advocating for originalist interpretations are essential strategies to counteract SCOTUS decisions that threaten constitutional governance and public welfare.

This episode serves as a critical examination of the interplay between SCOTUS decisions and executive actions, shedding light on the judicial underpinnings that facilitate significant governmental shifts. Through detailed analysis and expert insights, Strict Scrutiny underscores the imperative of vigilant judicial scrutiny to preserve constitutional integrity and protect democratic institutions.