Leah Litman (3:16)

The court is really in the giving season. It seems like giving the President more power, giving us a lot to talk about. So we are going to start with recaps because they really got down to business. Business in the final sitting week of the year. And by business we mean overruling 90 year old precedents and making the country safe for a nearly 90 year old president King. We'll begin by recapping last week's oral arguments. Then we'll cover some news and close it out with some assorted culture.

Melissa Murray (3:42)

First up, the recaps. Let's start off with, I don't know, Trump versus Slaughter. This of course is the case about whether SCOTUS is going to do the damn thing and overrule Humphrey's executor. And, and I'm here to tell you, spoiler alert. They are because stare decisis is for what? Anyone? Any suckers?

Kate Shaw (4:04)

Suckers.

Melissa Murray (4:05)

Suckers, Exactly. I needed you to respond a little faster, like it's been six years. You guys should know this by now. Yes, we were overthinking suckers.

Kate Shaw (4:13)

It's pretty simple.

Melissa Murray (4:13)

You were overthinking it. But don't worry, the court wasn't. So we're all good. All right, so it seems pretty clear that the Justices are going to overrule Humphrey's executor because stare decisis is for suckers. But there is an off chance that they might exhibit a little restraint and not overrule Humphreys explicitly, but instead issue some vague statement about why Humphreys is no longer relevant and therefore we're just gonna ghost it.

Kate Shaw (4:43)

Somehow they've done discarded.

Melissa Murray (4:45)

Yeah, like, like put it in a lockbox like a baby.

Leah Litman (4:48)

Overruled. In the court of history.

Melissa Murray (4:51)

All of the things, different tactics, same outcome. So say it with me again, folks. Stare decisive.

Leah Litman (4:58)

Four is for suckers.

Melissa Murray (5:00)

That's right. That's right.

Leah Litman (5:02)

For those who care about precedent. Brett, Sam, you can skip this part. Humphreys is the near century old decision that upheld a law limiting the President's power to remove the heads of bipartisan expert independent commissions. In Humphreys, it was the Federal Trade Commission or ftc. In this case, Trump wants to remove FTC Commissioner Rebecca Slaughter in violation of the very same law the court upheld in Humphreys and scotus said you do you my guy.

Kate Shaw (5:29)

Yeah. So this is not the first time that this President has tried to remove a member of a multi member agency in defiance of very clear statutory law. He has tried to remove Commissioners on the National Labor Relations Board, the Consumer Product Safety Commission, the Merit Systems Protection Board, Federal Election Commission, Privacy and Civil Liberties Oversight Board and more. And the Court, even before this case, allowed him to do that by granting the Administration's applications for stays of lower court opinions that had prevented those removals because they were clearly illegal. Slaughter itself was actually one of the cases in which this happened. The Court on the shadow docket allowed the President to remove Slaughter from the Federal Trade Commission or ftc, while her case was being litigated.

Melissa Murray (6:12)

But now, of course, they have heard oral argument in Slaughter's case and we should note that the oral argument is actually happening before the case made its way through the entirety of the federal court system, which is usually the case these little justice gremlins, as they are, want to do when they really want to go ape and blow stuff up, agreed to actually bypass the intermediate appellate court and just grant certiorari after the District Court issued its ruling in Slaughter's favor. So listeners, if you're not following along, I'm just going to mark this for you. This is how you know the Court is really serious about overruling Humphrey's executor and letting King Donald the turd, I mean, the Third have his way. They need to leapfrog the intermediate appellate Court because they are so ready, absolutely itching to overrule this major precedent. And again, just to make this clear, they have overruled a major precedent in four of the last five years. So this is their thing and they're ready to do it.

Leah Litman (7:16)

Sorry, Donald Teeter. This is their thing. No, wait, this is their kink. Overruling precedent. Sorry, do you want me to say it that way? This is the Court's eagerness to hear this matter. Leapfrogging the Court of Appeals and letting the President preemptively overrule Humphreys was a giveaway. This argument confirmed that it was about as bad as you might expect along basically every dimension.

Kate Shaw (7:41)

So bottom line, it is perfectly clear that all six Republican appointees are going to sign off on the President's violation of Federal law and they will end the current system in which Congress can insulate the heads of commissions from presidential removal at will. This is going to be an enormous blow to the last remaining pockets of independence inside the administrative state.

Leah Litman (8:00)

And the ruling is also going to be profoundly destabilizing in other ways as well. It's going to open up a can of worms about who else the President must be able to fire. Not just the heads of commissions perhaps, but maybe inferior officers, people below the heads of commissions, maybe employees, people below inferior officers, perhaps civil service members, judges on Article 1 courts like the Tax Court or court of Federal Claims, so on and so forth. To which the Republic Justices basically for the most part said I really don't care. Do you accept?

Kate Shaw (8:30)

And we'll talk more in detail about this, but just at the outset to say they don't care except for the things that the six of them might decide they do care about, like the Fed, you know, that they'll probably leave alone and there could be others and they'll probably leave those entities alone because they want to and they can. But the rest of it, unless there is a major course correction that Leah just listed, I think is very much at least going to be called into question by the opinion that the court issues in this case. Case.

Leah Litman (8:57)

Right.

Melissa Murray (8:57)

So I agree with everything Leah just said. I think this will be enormously consequential for the administrative state, for federal regulation, for personnel at every other major multi member agency as well as the civil service, maybe the possible exception of the Fed, as you say Kate. But I want to make a more granular point about this case. So listeners, the FTC was created by Congress as part of its early 20th century trust busting efforts. So this is an agency that's basically designed to protect consumers by preventing industry and market consolidation. So when corporate behemoths want to merge, there's usually some kind of FTC and DOJ antitrust review to ensure that the proposed merger doesn't screw over the little guy. And here's another example. When Amazon decided to automatically enroll people in Amazon prime and then they created this 11 step process to unsubscribe from Amazon prime, the FTC decided to investigate it and in June 2023 it was filed a lawsuit against Amazon. And weirdly in September 2025, just nine months after Amazon purchased a fawning documentary of Melania Trump and its founder Jeff Bezos attended Trump's second inauguration, Amazon reached a deal with the new Trump FTC to settle this lawsuit that the Biden administration had initiated for $2 billion. Now that is a huge amount, but some say it's substantially less than what Amazon might have owed if the FTC's lawsuit had been allowed to pro Amazon subscribers got about $51 as a payout. I'm saying all of this because I just want to make clear that there is a cadre of oligarchs who are supporting this president and they would love to see an FTC that's absolutely aligned with his agenda, which is to say an FTC that is not interested in consumer protection, an FTC that is more inclined to turn a blind eye to the rampant consolidation of wealth. None of this is a coincidence and I just want to make that clear. So end rant.

Kate Shaw (10:58)

So I totally agree with that. And I can I give two other examples in addition to the Amazon prime settlement, the lawsuit challenging potential price fixing in the insulin drug market, or at least the kind of like intermediary market, and also this pretty important FTC rule about non compete clauses and their unenforceability. That rule was challenged, A district court struck down that rule and the administration, this administration, after the change in personnel to the ftc, decided not to appeal that district court opinion. So you have, we are three major actions that have been substantially thwarted, or at least there's some real question in the, in the settlement terms context about, you know, whether the president has already had enormous impact on the direction of this supposedly independent agency. And just imagine what you could do.

Melissa Murray (11:42)

If you could get the whole agency staffed with your toadies.

Kate Shaw (11:45)

Totally. Well, I, you know, we've got some pretty clear indications already and I'm so happy, Melissa, you brought up these specifics because you would never really know this. From the tenor of the oral argument, there was surprisingly little about the FTC itself, itself in this really abstract and, you know, sort of perfunctory in lots of ways, performance of the justices. But in terms of the ftc, I had this op ed in the Times last week that quoted something that Rebecca Slaughter, who's obviously the commissioner who brought this lawsuit, so she was on a panel with a bunch of former heads of independent agencies all fired by Trump. And it was a fascinating panel that my colleague Kerry Colleonesi convened and she just told this story. So she was in office when January 2025 rolls around, Trump is inaugurated. And she basically, she's asked about the importance of, of independence for an agency like the ftc. And she said something like it kind of is captured to my mind in this single image, which is the president on stage flanked by these, you know, tech company heads, like oligarchs, as opposed to being flanked by heads of state or civil servants or anybody else. And she says, I looked up at that stage and I, it occurred to Me that the FTC was in active litigation with almost every single one of the companies whose leaders were on stage with the President. They were the ones flanking the President at his inauguration. And, you know, that, I think, is a perfect distillation of the beauty of independence. And also why exactly, as Melissa was just saying, allowing this sort of independence is a real problem if you think essentially all of government should just be an extension of the President. So end my rant there my rant is not done.

Leah Litman (13:13)

But, you know, the agencies are going to be making decisions based on the President's preferences. And the president just so happens to love being given things like, huge fan of Santa. That guy. And six members of this court seemed fully prepared to sign Gilded Age 2.0. Bigger, better, wetter. And yet at the argument, these guys were also just really lazy. Like, it sounded at times like they were almost bored. They had maybe one maddening talking point, which we'll get to, I'll tease it now. They just dramatically reimagine what is going on in our system of constitutional governance. And that was basically all they came up with. And aside from that, you know, they just asked John Sauer, the Solicitor General who argued for the Trump administration, you know, in favor of broad presidential power and overruling Humphreys and eliminating independent agencies. They asked. We're right, aren't we? We're totally right that the President has to have this power. To which Sauer unsurprisingly said, you're doing amazing, sweeties.

Kate Shaw (14:06)

They asked him some other things, such as the Federal Reserve Board is different. Right. And we don't have to decide annoying stuff like whether our reasoning might mean dismantling the civil service. Right. To which Sauer basically said, oh, oh, for sure. I mean, on the Fed, to your kind of like a lot of this was surprisingly kind of lazy feeling for something this high stakes. Leah, he basically asked about the Fed, just quoted back to the court their own incoherent language from the Wilcox shadow docket order about how the Fed was probably different. So he just like, said the word salad that they wrote in that order. And they all nodded and were like, okay, yes, that's right. But there was no substance on either side of that exchange. It was one of the many moments that made me want to put my head through a wall.

Melissa Murray (14:49)

Well, in Sauer's defense, and it really does pain me to say that, but we're trying very hard to be an even handed podcast in 2025. But in Sauer's defense, he understood the assignment and the assignment is to be a yes man in all things. He says yes to the President and he says yes to these Justices. He essentially just stipulated that they don't have to decide other things that they don't want to decide right now on things that are inconvenient truths that are getting in the way of making this unitary president. He told them, you don't have to make make up any of these arguments right now. And he didn't make any up. And it all seemed good for everyone.

Leah Litman (15:28)

Yeah. And like that is one part of what I found to be crazy making about this argument, which is the extent to which it read or sounded to me like fan service. You know, fan service about the Justices and for the justices.

Melissa Murray (15:45)

Seriously, the basic tenor of this argument was we are so right. We are such geniuses. Everyone else has been really wrong, including those chumps on the New Deal Court. They were very, very wrong. And we are now going to correct all of the wrongness that has dogged the American public for the last 90 years. You're welcome.

Kate Shaw (16:04)

But you know who was not wrong in the Justice's estimation and the person for whom a lot of the kind of fan service seemed to be provided, or at least in whose name the fan service was provided, was the great man himself, Antonin Scalia, who was the only real author and the only real source of anything this Court will recognize as law. It's a scalpel court occasionally when he doesn't go far enough and then they're, they regrettably have to, you know, suggest that even he was not reactionary enough for this Court. But I do want to play two pretty jaw dropping exchanges along these lines of kind of Scalia fanfic. They came up in response to some of the Democratic Justices pointing out that the Court would be overruling a century's worth of precedents, that a bunch of earlier Justices is blessed if the Court does the damn thing. So let's play first the Republican appointees posing some questions and Sauer's responses.

Will Arnett (16:57)

Response to Justice Sotomayor's question, you have Taft and Scalia, right? It's not, not too shabby.

John Sauer (17:04)

I, I think those are outstanding jurists. And with respect to Justice Scalia in particular, one of the greatest jurists in the history of the Court, it's creating junior varsity legislatures, which would be unconstitutional under Justice Scalia's descent in Mistretta.

Leah Litman (17:16)

Like new no law, just vibes dropped no law, just Scalia opinions. And hearing this argument like it helped me understand why they were really struggling in Olivier, that prizer heck case from the previous week. They were so busy preparing to lionize Scalia it was jarring when all of a sudden there were questions and concerns about an opinion written by the great man himself. Like the dissonance was just too much. And this, you know, Scalia fan service worldview was also evident in some truly moronic comments by John Sauer about wolves, which we will play and then explain here.

John Sauer (17:57)

Though this wolf comes as a wolf, right? I mean the restriction on executive power is right there in the statute. I can't address all the world wolves in the world, but this wolf, when it comes to constitutional structure is Fenris the most dangerous world wolf in, in the history of, of Norse mythology.

Leah Litman (18:13)

If you are like wtf is he talking about with dangerous wolves and Fenris, I'm sorry, you are not a member of the right wing legal cult. Like when I heard this it reminded me of that like 90s anti drug commercial. Like this is your brain. This is your brain on drugs. Like this is your brain. This is your brain on fed sock talking points. Like you just start saying things like wolves.

Kate Shaw (18:36)

Yeah, this is like the hot boxing that you've been talking about for years now. So I too had a full body kind of cringe experience during that moment there, you know, for a couple reasons. One, just the kind of insane lack of self awareness and insularity. These are members of a club. They're speaking to each other in their secret language, which is like Scalia references, Scalia pulls dissents. But also they were, I think particularly in the Fenris invocation, much lamer than Scalia himself, who at least frequently had rhetorical flair going for him. So they can't even do that. But you know, the effort to appeal to, I guess a combination of, of Scalia stands and Norse mythology stands is. We should explain a reference to Scalia's dissent in Morrison vs. Olson. Morrison is the case that upheld the independent counsel statute, which is one of the post Watergate reforms that created this independent counsel who was not removable at will by anybody in the executive branch in order to investigate allegations of high level misconduct by executive branch officials. So given the nature of the position I just described, you can see why it made sense for its occupant to enjoy a degree of independence from the executive branch's political leadership. And when this arrangement was challenged, the court, in an opinion written by liberal squish William Rehnquist, upheld the constitutionality of the statute.

Melissa Murray (19:53)

But the great man Antonin Scalia decided to dissent from the majority in Morrison versus Olson and basically he went off. And by off, I don't mean off, I mean awf. He went off to say that the independent counsel statute was unconscious constitutional. He described the law as a major threat to the separation of powers. And in describing the independent council statute, he decided to be uber dramatic, writing that this wolf comes as a wolf. Humphrey's executor. What big teeth you have.

Kate Shaw (20:29)

So basically that part an invisible ink. You had to like hold the opinion up to the light. But basically this is the vibe. So since Humphrey's executor dropped, you know, 90 years ago, we have never really experienced the true separation of powers until now, when this Court is going to do us a solid and give us a real separation of powers along the lines that Scalia imagined in Morrison vs Olson but didn't have the votes to call into being now does. So it's going to be awesome. There were a lot of other maddening aspects of the argument and we're going to spend a little bit more time next week on some of the implications of the case with a very special guest. But let's just take a few more beats, including on the theory the Republican Justices are poised to embrace, and that is the military executive theory. As we have said before, the UET slash UTI proceeds as follows. It notes that the Constitution vests the executive power in the President. It insists that this means all of the executive power. The Constitution doesn't say that, but you would never know it from the way the Court's Republican appointees, especially the Chief justice, love to say all of it. The Constitution also requires the President to take care that the laws be faithfully executed. Adherence to the UET say this means the President has to be able to dictate exactly how the laws are executed. Constitution does not say that explicitly. And the UET takes these things, which again, the Constitution does not say, and then declares the President must be able to control anyone who exercises significant executive power, which they then assert means the President must be able to fire at will because that's a core component of controlling the underlings in the Executive branch. Anyone who exercises that significant executive power.

Melissa Murray (22:07)

Oh yeah, this is me staring in Dobbs and Roe versus Wade. Just like things the Constitution doesn't say, but are nonetheless totally fine. Anyway, Amit Agrawal, who represented Rebecca Slaughter, tried to meet the Justices where they are, which is to say he tried to talk to them in their preferred history and tradition vernacular. And as he noted, there's literally a decades long history and tradition of Congress setting limits on the President's removal power. But again, this was another example of bringing principles to a gunfight because these justices only want to talk about history when they're distorting it to tell us that fetuses should be able to own AR15s and that the Freedmen's Bureau was really about providing aid to Confederate slave owners whose slaves had been confiscated by the Union. I thought Aggarwal did a good job, a great job, maybe showing how history and traditional were actually on his side. But again, the whole argument assumed a kind of principled reason that I just don't think was ever going to be there.

Leah Litman (23:12)

Yeah, you know, listening, I had a somewhat different take on Agarwal's performance. Like, I thought it was a little mid. You know, he had good arguments because there are good arguments for independent agencies. But at various moments, his defense of them sounded to me like a little tepid. And I just wondered about the choice, which, you know, we've seen in. In a few cases, you know, I've seen in some that just, like, really irked me to put up someone with Republican credentials as the advocates. Agarwal clerked for Alito and Kavanaugh in an effort to get credibility with the Republican appointees. And I just think, like, they don't care. They're not going to listen, you know, particularly in a case like this. Right. Like, it's just been decided. So put up someone who will tell it to them straight to their faces, speak to the public and be unapologetic in a defense of independent agencies. You know, like, frankly, Justices Jackson, Kagan and Sotomayor were during this argument. Like, I just, like, just this move irks me a little of, like, picking a Republican advocate because you think they'll have more credibility. Because I just think it kind of like plays into the idea that they do and should have more credibility.

Melissa Murray (24:11)

So, I mean, this is basically the tension that Jody Cantor's article about the liberal justices is sort of teasing out. Like, do you try and negotiate or do you just go straightforward and, you know, like, tell these guys to off that they're wrong? And, you know, I think there is something different about fellow justices trotting that line as opposed to an advocate. You know, I didn't see his selection as the advocate as an effort to find common ground. I thought he was selected because he is someone with these conservative bona fides who maybe could get the benefit of the doubt, but probably not. But I also think it was meant to underscore maybe for the public that literally two generations ago, the idea that Congress could limit executive removal power was actually a conservative argument. And third, I think Slaughter's side probably recognizes that the best they can hope for for their client and everyone else similarly situated is a narrower decision that carves out some exceptions. And Agarwal pressed this point assiduously. So, no, I think you're exactly right. It was not a fuck you. The unitary executive theory is straight fan fiction garbage, and you are all a bag of hacks. Like, he was definitely not saying that.

Will Arnett (25:23)

That.

Melissa Murray (25:23)

But I don't think he was ever going to be in a position to say that. And I don't know that any advocate could be in a position to say something like that. Although justices could.

Leah Litman (25:32)

I'm not asking for that, although that would be fun. Right? And at a certain point, I wonder, like, if there are clients who just think, like, this is not a serious court. So, like, it's in my interest to, like, demonstrate that. But, like, the added value of a Republican advocate is just unclear in cases like this. So why not pick the best advocate? And sometimes that will be. That's fair, you know, a Republican. You know, we'll talk about Roman Martinez in the next case, who was terrific. Other times, like here, I just think there were better options, like Jennifer Bennett, who we've talked about, Isha Anand, Pam Karlan, Deepak Gupta. Like, I could go on. And it was just, like, kind of disappointing for me to listen to.

Kate Shaw (26:04)

I was thinking about, say, LA Law, which was an interesting case where the first Trump administration joined in the challenge to the constitutionality of the single member director structure of the Consumer Financial Protection Bureau. And so they had to appoint an amicus the same way they had to appoint one in the campaign finance case we're about to talk about. And there was was what seemed at the time a very crafty decision, which was to appoint Paul Clement, a conservative with, like, great, you know, bipartisan credibility, to defend the structure of the cfpb. And, you know, he did a fantastic job and it didn't work. Right. They struck it down and they laid the foundations for the Court to just basically say, in this case, ah, the writing was on the wall in, say, LA la. And so I wonder whether that kind of shed some doubt on this as a strategic matter. And the other thing I thought was that, that I found so galling, really, on the part of the justices more than Agrawalo. I don't know that he handled it as I thought he should have. The justices having invented this distinction in Sayla Law, where a single member director structure is constitutionally intolerable. But a multi member one is, at least for now, fine. This is of course only five years ago. And five years later they're about to say, well, that one's not fine either. But it was an invented distinction. It never really made any sense, as Kagan made crystal clear in her descendants. But then they made Agarwal defend the distinction which they made up, which was so outrageous. But he did and they asked him if he thought Salah Law was correctly decided and he said yes. And I just think once you've done that, you've given the game away. And I don't think they were at all fair to make him defend their insane distinction. But I also think that if you say Sala Law was right, I just think there's no chance you even have a principled basis on which to say I should win here, let alone a chance of winning here. And so that I think was kind of tactical, but there's probably nothing that could have been done. Nothing advocate selection or, you know, kind of argumentation or otherwise. They're going to do what they've already decided to do here. But I do think that, that maybe other ground could have been gained along the way with a different approach.

Melissa Murray (28:04)

I don't know. I think they were in the bag for this and it could have been anyone.

Leah Litman (28:07)

And so it's just like, why pretend?

Melissa Murray (28:10)

Well, I mean, I give him credit for making the point in making it, I think to the public, like these are not woke views, like these were conservative.

Leah Litman (28:19)

I don't think he made that to the public. I just don't think he was effective.

Melissa Murray (28:22)

I mean, anyone listen, I mean I, I got that. I mean like the whole history and tradition piece, I think he really laid out like there is a long history of this and conservatives used to think that this was a conservative posture.

Kate Shaw (28:35)

And I do think the emphasis on history was striking in that the Trump administration never affirmatively brought up history and didn't do a good job of engaging with history when, you know, the occasional question arose which is a pretty clear that they do not think that the history is on their side. And that is because it is not.

Melissa Murray (28:51)

This is a world turned upside down. I'm defending John Sauer and Amit Agarwal. What is happening? It truly is the festive season.

Kate Shaw (28:59)

It is.

Melissa Murray (29:00)

I'm giving.

Kate Shaw (29:01)

You're wearing an almost festive sweater or.

Melissa Murray (29:03)

The piece colored sweater.

Kate Shaw (29:06)

It's green of some sort.

Melissa Murray (29:08)

Well, the kind of green for when you're losing separation of powers but gaining a best, better version of it.

Kate Shaw (29:15)

A better version that we have long needed.

Melissa Murray (29:21)

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Kate Shaw (31:48)

Okay, so let's talk about what else was screwy during this argument. One thing that seems important to highlight was the complete erasure of Congress, which, you know, again, we've occasionally made the Same mistake, too, because as Melissa often asks, what is a Congress? But the Court seems confused too. And it's kind of the whole premise of this debate was the erasure of an entire branch of government. So they seem to think pretty clearly that only presidents, and maybe only Republican presidents represent the Democratic will. They refuse to acknowledge that Congress is democratically accountable and that both Congress and previous presidents have signed lots of laws, the Federal Trade Commission act, but many, many others creating these independent agencies. So it is a bit much to now decide the Court needs to be the guardian of democracy by. By striking down this law and by extension, lots of other laws that the people's actual elected representatives have passed. Justice Jackson was, I thought, excellent in really driving this point home and essentially working to, as I think Jackson's questions really brought out, make the President the repository of even more power, as we are seeing in real time, the catastrophic consequences of a President who seizes more and more power, breaks laws, assert sweeping authority over the administrative state and more. So they're insisting that the executive branch is. Is the only truly democratic branch and also unitary at the very same time that we are seeing the executive branch not exercising just the President's whims, but also being driven by a lot of, in the immortal words of Melissa Murray, the new DEI cadre, Dick's ex husbands and imbeciles.

Melissa Murray (33:18)

The theory that makes this whole song and dance about giving POTUS control over these agencies, the thing that makes it so great is this idea that all of this is good for democracy, that it makes the agencies subject to democratic control because Congress was apparently not democratic at all, and it makes them accountable to the President, who is the most democratic figure in the entire government.

Leah Litman (33:44)

So anyway, also, when did this Court decide it loves democracy so much because partisan gerrymandering would like a word like, when exactly are we a democracy versus a republic? It's a little hard for me to follow.

Melissa Murray (33:58)

Justice Kavanaugh, throughout the argument, also kept making these gestures towards liberty and essentially conjuring this idea that the really dangerous thing for liberty is the prospect of these unaccountable agencies. And I was just sort of sitting there thinking like, do you read the paper? Do you read? Because, sir, you know what else is a true danger to liberty? An unconstrained, unfettered president just doing things Kavanaugh stops are a danger to liberty. Like, sir, be so for real. Any event, Justice. Justice Jackson challenged Sauer's argument that the unitary executive theory is good for democracy. She also challenged the administration's arguments about constitutional Texts. And I thought this was a really important intervention. John Sauer was essentially gesturing toward the vesting clause, which states that executive power is vested in the President. This was supposed to be a kind of slam dunk argument that the Constitution gives the President all the power. And Justice Jackson was like, sir, I see that you've read the Constitution. Good for you. Here's another unexpected but welcome development. What do you think of the Necessary and Proper Clause? Because that is also in the Constitution. And it also says, quote, the Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States or in any department or officers thereof.

Kate Shaw (35:27)

Kagan has been shouting into the void about this for years. Congress can, the Constitution makes crystal clear, address how powers vested in other departments, like in agencies, are exercised. Congress makes those agencies. The text of the Constitution actually says this stuff, unlike the redline version of Article 2 that has all of in the executive vesting clause.

Leah Litman (35:50)

So on this textual point I wanted to highlight, I'm not going to play the clip, but just describe it, this otherworldly thing that Justice Barrett floated. So she asked Sauer, do we, the Court, really have to decide which clause in the Constitution is the basis for the unitary executive theory? Can't we just be kind of vague about the whole thing and gesture at the Constitution and say, voila, the unitary executive theory is a thing, but not explain why that is?

Melissa Murray (36:22)

Like she was really.

Kate Shaw (36:23)

I think we should play the clip. I think let's play the clip.

Leah Litman (36:27)

Let's play the clip.

Amy Coney Barrett (36:28)

So, General Sauer, you argue that the removal power comes from the Vesting clause. And I understand why you make that argument, because that would be the broadest authority, because it would give, you know, that would be the full unitary executive theory. But there are other theories of where the power could be located. For example, if it was part of the Take Care Clause, then it might be more limited because it might apply only or give removal authority only over those officers who exercise significant discretion. Or it might be an adjunct to the power of appointment, which would mean that inferior officers didn't come within it. And I don't read our cases to this point to really be very specific. They mentioned all three, and they could be mutually reinforcing. Is there any reason for us to be specific about it? In this case?

Leah Litman (37:19)

This is maybe the best evidence that no thought, no arguments going on. Right? It's just like the talking points of a cult. And like, you need to believe the right things. And that's it. Because when I hear stuff like this, like, I wonder, do they think they are serious or do they understand they are parodying legal analysis?

Kate Shaw (37:43)

It's also just like, it's one thing if you're sitting around trying to figure out you want to, like, actually bring a lawsuit, like, how do we frame our claim? Like, what, what, what. You're building something from the ground up. But to say we're gonna announce a constitutional rule based on strike down a law. Let's just spitball, like, what we think the Constitution, like, where we should find it on brand.

Melissa Murray (38:03)

They have been telegraphing this all fall. Right? This is just like her book tour interviews. And it's just like Brett Kavanaugh's 8th Circuit talk, where they were just like, all that stuff we do on the shadow docket. We're just kind of freestyling. Like, we don't really. And we're not trying to be really concise or precise here, because we know that we don't want to get locked down.

Leah Litman (38:23)

We haven't really figured it out.

Melissa Murray (38:25)

Like, who wants to be pinned down? I'm a free agent. Like, about everything.

Kate Shaw (38:28)

Just blowing up agencies. We just have to figure out why.

Melissa Murray (38:32)

That's what we mean. Free agent, free agency, be free of them. That's the whole point. I. I mean, again, she's doing exactly what conservatives and FedSoc have accused liberals of doing for years. I mean, this is the same argument that people leveled against Harry Blackmun and Roe versus Wade. Like, the whole idea that black men couldn't identify the precise part of the Constitution that authorized a right to choose abortion. And she's basically like, we can do that here, too, but for blowing up agencies, right? And Sauer and everyone else is like, yeah, that seems right. Like, be as vague as possible.

Kate Shaw (39:09)

Just do it. All right, don't worry. We have other complaints. There is the complete unwillingness to own up to a legal principle and its implications. Obviously, that was on display in the Barrett excerpt, but appeared throughout the argument. The administration is peddling and SCOTUS is about to embrace, but maybe hasn't figured out the precise constitutional foundations for it. But the theory says that because the Constitution vests executive power in the President, the President must be able to to fire everybody who exercises significant executive power. This necessarily raises a lot of questions that sweep beyond the Federal Trade Commission, such as, if that's the rule, who else besides commissioners exercised significant executive power? And as we said at the outset, Sauer and the Republican justices seemed totally unwilling to engage with this inconvenient question, much less to answer it. At times they declined even to acknowledge it. This led to the following exchanges.

Noel Francisco (40:01)

But you're putting at risk the independence of the Tax Court, of the Federal Claims Court, Article one courts. You're putting at risk the civil Service. I don't see how your logic could be limited.

John Sauer (40:17)

As to the non article 3 courts, we haven't challenged the removal restriction as an Article 3 court, not yet. We recognize that there are some line drawing issues as as to those that came up in cases like Freytag and Ortiz, again, those aren't presented here, those aren't briefed here.

Noel Francisco (40:33)

Our logic has consequences. Once you use a particular kind of argument to justify one thing, you can't turn your back on that kind of argument if it also justifies another thing in the exact same way. I know what you don't challenge, you're missing the point.

Melissa Murray (40:51)

Just details, no big deal.

Leah Litman (40:53)

No rationale, no limiting theory. Just vibes like maybe this is how the just the tip migrates into the merits docket, right? Because like they don't actually say this is what this theory is going to do. They just say like oh yeah, we're just saying this about multi member commissions, but like we're not actually blowing up like all of government yet. Like that, that was really their line, like don't worry, this won't blow up the government yet. Slight problem was Neil Gorsuch couldn't keep it in his pants. Like he could not contain his excitement about blowing up the government in other ways. And this came up when several of the Democratic appointees observed like, you know, to date there's been this kind of settlement and compromise. Congress has given these agencies a lot of authority, some executive, some more adjudicative in nature. At the same time it has limited the President's control over these agencies. So the agencies get to do a lot, but we are not creating them as a mechanism for expanding presidential authority. Their point was straightforward. We shouldn't now give the President more control over these agencies and disrupt that settlement. And Justice Gorsuch took this as an invitation to blow up the agencies themselves. As you can hear here, General, let.

Will Arnett (42:03)

Me suggest to you that perhaps Congress has delegated some legislation, legislative power to these agencies. Let's just hypothesize that. And let's hypothesize too that this court has taken a hands off approach to that problem through something called the intelligible principle doctrine, which has grown increasingly toothless with time. Is the answer perhaps to reinvigorate the intelligible principle doctrine and recognize that Congress cannot delegate its legislative authority. Is the water warm?

Leah Litman (42:42)

General?

John Sauer (42:43)

Sorry, what was the last. I couldn't hear the last bit.

Will Arnett (42:46)

Is the water warm?

Melissa Murray (42:48)

The intelligible principle to which Justice Gorsuch is referring in that passage is a key component of the Court's settlement around what's known as the non delegation doctrine. The non delegation doctrine is the idea that Congress cannot delegate its legislative power to other branches. And the Court last relied on this view in 1935. And the argument there was that in these two laws that were struck down, the Congress had given the Executive what was essentially a blank check when it delegated power to these agencies. Since that time, though, the Court has held that congressional delegations of power to agencies are fine when the Congress provides an intelligible principle that guides the agency's use of the power. And again, because we're quoting great Men, no less than Justice Scalia wrote the major decision, Whitman v. American Trucking, making this point about the intelligible principle and the non delegation doctrine.

Leah Litman (43:40)

As Kate recognized, sometimes the great man just not reactionary enough. But like Neil Gorsuch was seemingly suggesting, like maybe we're just not thinking big enough, like maybe we should also blow up the agencies themselves by reviving the non delegation doctrine.

Kate Shaw (43:57)

And yeah, it's also, I mean I'm sure it won't give them much pause, but they might have to work a little bit to explain why the same Court that went so badly awry in Humphrey's executor in 1935, the same year, was actually properly channeling the non delegation doctrine which we have under enforced since.

Melissa Murray (44:13)

But what is time, Kate, I'm sure.

Kate Shaw (44:15)

You will find a way. Speaking of doctrines designed to constrain agencies, at various points we were reminded that the Court's ruling in slaughter will probably not not benefit Democratic and Republican presidents. Equally different Republican appointees made clear that they have still got the major questions doctrine in their back pocket, which they will undoubtedly use to say that Democratic agencies cannot do things that trigger the Republican party and Republican appointees. So yes, both Republican and Democratic presidents will be able to fire agency heads and staff agencies with their own people. I think even this court couldn't, although, you know, maybe I should shouldn't call it into being identify a rule that explicitly prohibits a future Democratic president from doing what they're about to say Donald Trump can do. But it might not matter because only the Republican appointees in the agencies of Republican presidents get to actually do things when they had the agencies, because the major questions doctrine will be waiting in the wings to invalidate anything significant that Democratic agencies might try to do. So more crazy making things. The Republican appointees were for the most part not, not bothering to come up with arguments. They had basically one talking point that consumed a ton of the time of this oral argument, which was, what if Congress decided to turn every department into a multi member commission?

Leah Litman (45:34)

What?

Kate Shaw (45:36)

Because we all know the real danger is Congress, first of all, passing laws at all, but second, limiting the President's power too much by trying to install these bipartisan commissions at the head of bodies like the Department of Defense, Education, Agriculture, Interior, like this was what they decided to spend their time on. Elena Kagan had this, I thought, really epic response to that string of hypotheticals.

Noel Francisco (46:00)

It strikes me, Mr. Agua, as I listened to this, you know, if you go back to, let's say the Education Department with the Chief justice, which the Chief justice raised, that the more realistic danger here is that we'll have an Education Department as authorized by Congress, by law, that won't have any employees in it.

Leah Litman (46:19)

And Justice Barrett kind of, you know, pooh, poohed this concern saying, like, who can possibly say what will happen? Like we can't possibly predict it. Like it's a real mystery girl.

Kate Shaw (46:30)

Yeah. And I already mentioned the way the professed originalists on the Court were pretty uninterested in actually engaging with history. But I also want to say that when they did engage, they got some pretty basic stuff wrong.

Leah Litman (46:39)

So.

Kate Shaw (46:39)

So one, they think statutes with terms of years, but not explicit removal protections mean the President can fire those people in those offices at will. But as Professors Lev Menand and Jane Manners have been writing about for years, that is just not how terms were understood. Barrett really botched this in a question that she was asking about the Revolutionary War Debt Commission, which is an important early agency that had appointees with these terms of years. There were also, I think, some real misrepresentations of a case called Parsons, a case called Ex Parte Hennin, even Marbury v. Madison. So Levmonand had a really good post argument blog post on notice and comment that got into some of this. And so we'll post that in the show note.

Melissa Murray (47:14)

All right, let's touch briefly on the implications of what the Court is likely to do here. So first of all, this ruling is very likely to give us an FTC that is the FTC of Jeff Bezos's dream. So awesome it's also going to give the President of the United States sweeping powers over every other agency in the administrative state. So what he's doing with the Department of Justice, the cfpb, Health and Human Services, the Department of Education, he will be able to do elsewhere. And if you've loved this last year, you're going to love what's coming. It's going to be great, an utter nightmare. And yeah, that's what this court is going to unleash also, you know, so.

Kate Shaw (47:55)

We now are going to, after this decision comes down, have these agencies with a lot of power that were designed to have that power wielded by these balanced bipartisan leadership structures. And it really does raise the question, maybe it would be better not to have some of these agencies at all if they're just going to be the playthings of an aggrieved and self dealing narcissist, although not have the agency at all. I worry I am now channeling Neil Gorsuch, which is not really what I mean, but I do mean that, you know, this is a critique that folks like Josh Chaffetz at Georgetown have made. But when the Court say in INS vs Chadha invalidated the one House legislative veto, left broad delegations, but without congressional ability to oversee those delegations of authority, like the court just thinks like, oh, what will happen if we pull this block out and leave the rest of it intact? And sometimes it is much worse than if they just obviously, best case scenario, didn't meddle at all. But you know, maybe the agency's left standing are worse than if they did not exist at all.

Leah Litman (48:54)

So the New York Times had a piece on the potential blast radius of this decision just to name some agencies potentially affected. You know, there might be up to 50, including the national Transportation Safety Board, the securities and Exchange Commission, the Nuclear Regulatory Commission and more. And we actually aren't going to play this exchange, you know, which I thought of when you were talking about the history cape. But during the argument, Justice Kagan asked the Solicitor General, look, you would agree, wouldn't you, that the founders wanted power separated, right? To which he said, I agree with an important caveat. Caveat the presidency itself, you know, to which Justice Kagan, you know, was a little taken aback and said, you know, that's not a caveat, the whole fucking thing, right? That's right. And you know, honestly. So this is our recap. I know we went long. We will go more quickly on the rest of this. Hopefully you didn't have to listen to this argument. Not worth your time. Unless you want to get amped up with rage. Like it's very clear. 63 Humphreys executor overruled or at least declared no longer applicable.

Melissa Murray (49:50)

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Sky Perryman (52:02)

President Trump doesn't know what to do with courage, but we do. I'm Sky Perryman, President and CEO of Democracy Forward. Since Inauguration Day, our lawyers have been fighting for people and communities challenging the Trump Vance administration's unlawful agenda. We've won legal victories already. But this fight isn't just ours. It belongs to the people. And we know the cost of silence is greater than the cost of action. So join us. Add your courage to the cause@democracyforward.org.

Melissa Murray (52:39)

Now because things can't get any worse. The following day, the court decided to hear argument in the campaign finance case, National Republican Senatorial Committee versus Federal Election Commission. What could go wrong?

Leah Litman (52:51)

It seemed like the Republican justices and the advocates arguing against the campaign finance regulation mostly wanted a rerun of Trump vs.

Kate Shaw (52:59)

Slaughter.

Leah Litman (53:00)

And just to play that one back, they had such a great time in that one.

Melissa Murray (53:04)

Let's do a quick refresher of the campaign finance case. So the provision at issue here is the anti coordination provision, which basically limits the ability of entities here, specifically political parties, to spend money in coordination with a political candidate.

Kate Shaw (53:18)

It so unlimited coordination would allow individuals and entities to circumvent contribution limits, which are still intact. For now, contribution limits restrict the amount of money that someone can give directly to a candidate and to a party. It's much smaller for individual candidates. It was $3,300 at the time this case was filed, and to a party, more than $40,000. And a donor can actually give a bunch to state parties to get that number. Actually Overall, closer to 5, $500,000. Small contribution limit for candidates, relatively speaking, larger for parties. But the limits, again, for now, do still exist.

Melissa Murray (53:51)

The contribution limits prevent quid pro quo corruption. So the idea here is that preventing a single individual from giving a ton of money to a candidate makes it less likely that the candidate will be captured by that individual going forward. The coordination limits, by contrast, effectively prevent end runs around the contribution distribution limits because they don't allow individuals to give money to a party that would then effectively be given to a candidate. The lawyer for the challengers, former Solicitor General Noel Francisco, basically laughed off the suggestion that there might be any corruption going on here in politics. And it was such a jarring intervention that we thought we should play it.

Noel Francisco (54:33)

Let's suggest that the fact that one major donor to the the current president, the most major donor to the current president, got a very lucrative job immediately upon election from the new administration, does not give the appearance of quid pro quo.

Kate Shaw (54:59)

Your Honor.

John Sauer (54:59)

Your honor, I'm not 100% sure about the example that you're looking at, but if I am familiar, if I think I know what you're talking about, I have a hard time thinking that his salary that he drew from the federal government was an effective quid pro quo bribery, which may be why nobody has even remotely suggested that maybe not the.

Noel Francisco (55:18)

Salary, but certainly the lucrative government contracts Might be.

Kate Shaw (55:24)

So that was fun to joke about Elon being uncorruptible, wasn't it?

Leah Litman (55:28)

Oh yeah, yeah.

Kate Shaw (55:29)

But in general on the. And also just like, no, no one's saying the salary was a problem. We're talking about billions of dollars in contracts. Like, come on. Anyway. But on the kind of slaughter slash Humphrey's energy that Leah was mentioning, the court really brought to this argument, there was the same kind of insularity and also sort of like polarization of the right wing legal profession. At various moments it became very clear that the Republican appointees view themselves as part of a club that includes Republican advocates. They are all on the same team. They are all engaged in the same project. So here is an exchange between Kavanaugh and Francisco as Kavanaugh was asking about other campaign finance regulations aside from the anti coordination limit that was actually at issue in this case.

Will Arnett (56:11)

You think it's constitutional?

John Sauer (56:12)

Your Honor, I don't have a position on whether it's constitutional or not. I'm willing to assume for the sake of argument here that it's constitutional. But it's still only the second of.

Will Arnett (56:20)

The that you're not going to want that cited back to you in a couple of years. Assume for the sake of argument. Okay, that's all right.

Leah Litman (56:27)

He's literally yucking it up with Noel Francisco, former Solicitor General in the first Trump administration, about how they are coming for the remaining last shards of campaign finance regulation. It was almost like Fed sock Mad Libs. And it reminded me so much of the references to wolves and Scalia in the Slaughter argument.

Melissa Murray (56:48)

Second and relatedly, was the courts and the challengers unwillingness to recognize or at least acknowledge the implications of the new legal theory that they were pushing and their unwillingness to adopt any kind of limiting principle here. So this was very much like the energy and slaughter here. It seemed like the Democratic appointees wanted to know, okay, if you win on this campaign finance challenge, where does your craptastic logic then take us? And here's the response.

John Sauer (57:18)

I understand, but then you're arguing what we're challenging here.

Melissa Murray (57:21)

I appreciate that.

Kate Shaw (57:22)

But how can your argument be today that these limits can fall and it.

Sky Perryman (57:27)

Will be okay because the other limits exist if you can't make a representation.

Melissa Murray (57:32)

That we're still going to have those other limits.

Leah Litman (57:35)

Translation shorter Noel Francisco. You can kill this limit because other campaign finance regulations will prevent corruption. But also, I refuse to say we won't challenge those other campaign finance regulations regulations. And we probably will.

Kate Shaw (57:48)

This generated a rejoinder from Ramon Martinez, who is the court appointed amicus defending the judgment below. So remember, as we've said, because the Trump FEC was on the same side as the challengers here, the court appointed Martinez, who is a former law clerk to both the Chief justice and Justice Kavanaugh. So he is totally fluent in right wing legal speak, but actually deployed that fluency for the forces of good in this argument. So let's play a clip here.

Will Arnett (58:10)

And I think what Mr. Frank Francisco's position is, and I think I'm glad he laid it out, this wolf comes as a wolf. He has basically told you that they're going to keep litigating to knock down every single one of the restrictions. And that includes the limits on donors to candidates directly. But just listen to how the donor candidate limit is going to be undermined.

Leah Litman (58:29)

As Kate said, as we learned, you got to speak in fluent fed sock about the wolves. And there were also just striking moments where the justices wanted the advocates, at least the ones on the same team that they are, to tell them they're doing amazing and that all criticism of them is unfair.

Will Arnett (58:50)

Here you are in our much maligned, I think, unfairly maligned decision in Citizens United. The effect of the provision at issue was to privilege certain corporations, namely the corporations that control all of the national media and, and disadvantage other corporations like Citizens United. And the effect of our decision was to level that playing field here. It is not apparent to me who is benefited by this provision and who is disadvantaged by the provision. And I would appreciate your enlightening me on that subject. Sure.

Kate Shaw (59:32)

I was in D.C. and listened to the argument a couple of hours after it happened and I texted you guys. I was just, just, I howled as I walked into the Metro listening to this. I mean, he really cares. And honestly, I think that that gave me a great deal of energy because the criticism actually on some level does get to them. I mean, it's maybe a small comfort because they're still going to do what they're going to do, but the fact that maybe I should remind everybody what he's talking about here. Right. So in 2010, in his state of the Union address, President Obama made this comment that we'll play here.

John Sauer (60:02)

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.

Kate Shaw (60:19)

And as the camera panned to the crowd, it caught Justice Alito very conspicuously mouthing not true while shaking his head vigorously side to side. Really not True, Really. But again, the fact that Alito is still mad about this almost 16 years later tells you everything you need to know about him. And another, I think rinse and repeat aspect of this argument was the fact that the Court, by inserting itself into this area at all, is upsetting settlements that Congress and the President, the actual Democratic branches here, brokered.

Melissa Murray (60:53)

Is this a good time to remind everyone that a wise man once characterized this kind of negotiation and settlement as quote, quote, hashing out in the hurly burly the give and take of the political process between the legislative and the executive? Yes, that was none other than Chief Justice John G. Roberts in the majority opinion in Trump vs. Mazars. And wait for it, he was quoting a young Antonin Scalia. Even Scalia was getting things wrong, it seems. Anyway, Justice Sotomayor made this very point to Noel Francisco. See, she speaks fluent Scalia too. She basically said, look, you're arguing that we have to strike down this campaign finance regulation because our previous campaign finance decisions like Citizens United, benefited corporations and advantage them relative to political parties. Well, now we have to come in and correct that imbalance. We had a settlement, you fucked it up. Now we're correcting that imbalance. Basically we're just fucking shit up and this court is now going to fix it by fucking up more shit. This doesn't seem very sustainable. And again, back to the slaughter recalls this was just like when the Court effectively upset the settlement compromise that Congress made delegating broad authority to administrative agencies while then insulating the agencies from presidential control. And now we're going to unpack that and they're going to have to fix it going forward. So basically they're just fixers. They're handymen, not justices.

Leah Litman (62:22)

A few more highlights slash lowlights. I want to play this clip with zero context.

Noel Francisco (62:26)

Boy, you are assuming a lot there about people's honestly dumbness.

Leah Litman (62:35)

Just I thought this evergreen for this court assuming a lot about people's dumbness.

Kate Shaw (62:42)

Just want to say maybe another word about appointed amicus Roman Martinez of Latham and Watkins. I thought he did a really excellent job arguing that there are serious jurisdictional problems here and specifically that there is no live controversy and no prospect of enforcement of the regulation. Both because neither of the petitioners, Vice President J.D. vance and Congressman, former Congressman Steve Chabot from Ohio, neither is currently an active candidate for federal office. And in addition, the Trump administration has said very, very clearly we are not going to enforce this law. We think it's unconstitutional and you can get an opinion from the FEC that will be an absolute shield to any potential public or private liability if, you know, you're concerned the possibility of future enforcement. So there's literally no actual live dispute for the court to resolve here. And I just want to play a clip where I thought Martinez got kind of close to telling the justices, like, have some self respect, at least try to look consistent and like you're doing law.

Will Arnett (63:38)

If any other plaintiff in this court told you that his injury is speculative, that it's uncertain, that it's premature, that it might happen, and it might not happen, they wouldn't have a prayer under Article 3. The same rules apply to the Vice President. There's no politician exception to Article 3.

Leah Litman (63:56)

This is why I said, like, I thought he did great. Like, you know, I know the court appointed him, selected him, but it was just fabulous, I thought. And like, he also invoked the Texas SB8 case, you know, when some of the justices were floating the prospect of, like, private enforcement, even if the federal government might not enforce the regulations, he's like, look, you said the prospect of private enforcement wasn't enough. And Texas SBA case, so like, qed. And there weren't, like, many questions either to Noel Francisco or the federal government on mootness, but at least some of the chief's questions to Martinez sounded like a little friendly to me. And, you know, Martinez noted that the challengers can seek an advisory opinion from the Federal Election Commission that would immunize them from future enforcement by a future administration if they're worried about it. And, you know, there weren't any. Any questions from, you know, Justice Jackson, Barrett, Kavanaugh, Gorsuch, and maybe even Kagan in the seriatim section, where the justices go one by one to Martinez or to Mark Elias, who argued for the interveners. So maybe, maybe they will say this is all moot.

Melissa Murray (64:57)

Yeah, I'm just gonna say maybe this is another opportunity where they appoint someone with conservative bona fides and, you know.

Leah Litman (65:05)

Again, as long as they're good, I don't have an objection.

Melissa Murray (65:07)

Fair enough. Fair enough.

Kate Shaw (65:09)

He was great.

Melissa Murray (65:11)

All right. The court also heard argument in Ham vs. Smith. This was a death penalty case. About Atkins challenges. Atkins vs. Virginia is the 2002 decision that prevents states from imposing a capital sentence on someone who has severe intellectual disabilities. Although the decision also allows the states to define and determine who has an intellectual disability under Alabama law, someone claiming an intellectual disability under Atkins has to prove, among other things, things that they have a true IQ of 70 or less.

Kate Shaw (65:42)

And post Atkins, there has been a lot of litigation around the way states actually implement the prohibition on executing people with severe intellectual disabilities. In ham, the specific question is how courts should weigh the cumulative effect of multiple iq scores when they're assessing an Atkins claim. So the defendant in ham, who prevailed below scored in the mid to low 70s on multiple tests. The district court and the court of appeals said that based on the standard margin of error, these scores might indicate the defendant could qualify as mildly disabled and actually may have an IQ below 70. And so they therefore considered not just the IQ tests, but also other evidence of intellectual disability. The state seems to want to press a rule that makes an individual's IQ that is like whether it is below 70, a way of foreclosing an Atkins claim if it is not below 70. But, you know, prior to this, making a showing of intellectual disability was not just based on a number on a test score, but could also be shown through kind of adaptive functioning limitations.

Leah Litman (66:40)

And some of the democratic appointees suggested that this particular case might not cleanly present the question about multiple iq scores, like, being enough, because it's not clear the state has or applied a version of a rule that would say a defendant can't show intellectual disability if their IQ is above 70. And there were also conflicting experts about the defendant's intellectual abilities. The district court credited the defendant's expert. I say that knowing how well this court respects district court's fact findings, but still right.

Melissa Murray (67:10)

The court also heard oral argument in FS Credit Corp. Vs. Saba Capital Master fund. The question here is whether the investment company act creates a private right of action, that is, legal authorization for private entities to sue.

Leah Litman (67:24)

And this case invites the court to clarify when statutory history and legislative context might matter to that analysis. As, as justice Sotomayor noted during the argument, you know, there are reports from the legislative history, both the senate and the House, saying they understood the statute to have a private right of action.

Kate Shaw (67:40)

This, I don't know if you guys felt the same way, but this to me, was another case also the same week in which the kind of clubby in group feel was just sort of like, so present and kind of turned my stomach. So one issue in the case, or like, maybe the biggest issue in the case, is how the court should grapple with both its own decisions and statutes passed by congress. But before the court's very hard textualist turn, that is, before the court decided to totally change the way it reads statutes. And, you know, in particular, the question here is, you know, whether it will read implied rights of action into statutes that don't explicitly have those rights of action. So let me just play one clip from that here.

Will Arnett (68:14)

If the court lets the Second Circuit's decision stand, the clear statement rule in Sandoval and Gonzaga will have little meaning. The court should leave private, private rights of action to Congress and reject Saba and the 2nd Circuit's unworkable return to the ancien regime.

Kate Shaw (68:29)

So there was just like all of this talk about like the ancien regime and like when that changed and what earlier decisions were like, tainted by that. And it just, you have to be so deep in the weeds to even decode what they are talking about. It was just like, you really don't have to make this as impenetrable to a lay audience and yet you're choosing to.

Leah Litman (68:45)

But honestly, like, I talked to my Fed Court students about this, about how like, like they have to kind of learn the different players because so much of this now is about context, relationships and memes in almost a certain way about this is just what this stands for and the social understanding of different groups about this period or this area of law. And on this insularity point, there was one moment, I think, where one of the advocates asked Paul Clement, who was arguing on behalf of a private right of action for responding. Like, I know this is awkward because you're usually arguing against legislative history. And it was just so, again, like clubby, insular, like, these are the rules and like we can all kind of joke about them because, like, we all understand it. You know, on the substance, I'm not sure how this case might come out. It's possible this will be the rare case where the court says there is an implied right of action in the statute.

Melissa Murray (69:39)

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Sky Perryman (71:42)

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Kate Shaw (72:14)

That's all for recaps. It was a lot. Hopefully you're still with us, but we will now turn to a grab bag of news and court calls. Culture first, the Supreme Court vacated a second Circuit opinion upholding New York's vaccination requirement. As a parent with kids in New York City public schools, I am psyched.

Melissa Murray (72:31)

So measles for everybody.

Leah Litman (72:34)

It's the giving season.

Kate Shaw (72:35)

So the requirement, I should say, applies to both public and private schools and it has no religious exemptions. The court just basically directed, at least at this point, obviously. I'm sure it'll go great down the road. But at least for now, the court just said the appellate court had to reconsider its decision upholding the requirement in light of the Supreme Court's decision in Mahmoud vs. Taylor, which we've talked about a good amount on this podcast. That's the case that held the parents had a First Amendment right to opt their children out of storybook time at school when the storybooks had LGBTQ characters.

Melissa Murray (73:03)

The plaintiffs slash challengers in the vaccination case argued that the vaccination requirement and the lack of exemptions for vaccinations was animated by religious hostility. I will also note that there was a maddening typo in the opening paragraph half of their submission. So can I read it, please? I don't want to pile off sentence.

Leah Litman (73:23)

No, but I love.

Kate Shaw (73:24)

I love that. It's so petty and so good.

Melissa Murray (73:26)

And also, well, it just, like, really bugs me.

Kate Shaw (73:29)

Yes. Can I. Okay.

Amy Coney Barrett (73:30)

Okay.

Melissa Murray (73:31)

Today in New York, if a vaccine would harm your lungs, you may be exempted, but if it would harm you soul, you may not. You soul. Just one letter.

Kate Shaw (73:44)

Just get it. Get that rna.

Melissa Murray (73:45)

Just say me in.

Leah Litman (73:47)

Could not land that plane.

Melissa Murray (73:50)

When Jenny McCarthy is editing your briefs. Justice for Jetty. Anyway, in other news, Judge Emil beauvais of the 3rd Circuit attended a Trump rally. And when asked by Ms. Now, why was he at the Trump rally, given the that he is a member of the Third Circuit Court of Appeals, Judge Beauvais responded, just here as a citizen. Seems almost quaint, but maybe I'll just read a little from Canon 5 of the Judicial Ethics Code. Quote, a judge should refrain from political activity. That's all I'm going to say because it seems pretty straightforward. The actual text includes the admonition that a judge should not, quote, attend or purchase a ticket for a dinner or other events sponsored by a political organization or candidate. End quote. Again, once you take away the reading requirement for a federal judgeship, I think everything's off the table.

Leah Litman (74:52)

Yeah, you know, he.

Amy Coney Barrett (74:54)

He.

Leah Litman (74:54)

Judge Beauvais is really upping the ante in the America's next top SCOTUS justice race. Like, those idiots on the 5th Circuit think they can get a Supreme Court nomination by writing screeds about Joe Biden in their opinions. Like, get real. The dark lord of the Third Circuit is showing you how it's done. And if you're not a contributor to Stephen Miller's Substack, you just don't have the game.

Kate Shaw (75:18)

Well, can I ask a serious question, though, about that? Like, cluelessness about things like these canons or genuine, like, they don't care? Do you just watch me kind of energy? You think it's the second?

Melissa Murray (75:29)

I think it doesn't matter. Like, it's just so whack a doodle.

Leah Litman (75:33)

I think it's the second. Like, it's just so, like, I am not a judge, right. I am aware that there is this canon, right. That says, like, judges shall not participate in political activity because, like, even observing the courts, right? Like, I know, like, judges do not engage in these activities. And opt out of many of them in order to avoid the appearance of engaging in politics and partisan activity.

Melissa Murray (76:00)

So the other thing, too is like, you can't get mad at, as the Supreme Court and some of these lower court judges do, when people talk about, like, you're clearly doing politics. If you're literally going to a political rally, you don't get to talk about how, no, what we're doing here is law. And you dumb fucks out there just don't get it.

Kate Shaw (76:20)

Yeah, yeah.

Leah Litman (76:22)

So during this particular rally, you know, Donald Trump once again said a bunch of horribly racist things, you know, including some directed at.

Melissa Murray (76:29)

So it was a Thursday.

Leah Litman (76:31)

Right, Right. About Representative Ilhan Omar. You know, the crowd shouted, throw her out. And again, Judge Beauvais is in the crowd. Like, is he chanting along? It's just horrifying.

Kate Shaw (76:41)

Jesus Christ.

Melissa Murray (76:43)

In other news, Alina Haba announced her resignation from whatever it was she was doing at the U.S. attorney's office in the District of New Jersey. So this is, of course, fresh on the heels of the Third, Third Circuit opinion that affirmed the district court opinion finding that Haba was unlawfully appointed to head the U.S. attorney's office for the District of New Jersey and therefore could not exercise the powers of the U.S. attorney in the District of New Jersey. So she basically said, you can't fire me because I quit.

Kate Shaw (77:17)

And I don't know what she's going to go do with herself. But Ms. Now has reported that with respect to one of the other sort of dubious acting U.S. attorneys, this one Lindsey Halligan, she is apparently actually going to go before the Senate as Trump seeks her confirmation to be A Senate confirmed U.S. attorney, which I genuinely am looking forward to. Popcorn galore as we watch that confirmation hearing, if in fact it ever comes to pass.

Leah Litman (77:44)

Right.

Kate Shaw (77:44)

I'm a little dubious, but, you know.

Melissa Murray (77:47)

I don't think you have to to show every charge to the Grand. No, I haven't.

Leah Litman (77:53)

No, you don't have a right not to testify against yourself.

Melissa Murray (77:57)

You don't. No, I haven't read the Fifth Amendment, but I'm sure it's not as good as the fourth or the Third, because it's after all.

Kate Shaw (78:06)

Right, well, the possibilities are pretty exciting, so we'll see if that actually does come to pass. In the meantime, the district courts are still courting, unlike some high courts. We know Judge Zenas granted Kilmar Abrego Garcia's petition for habeas corpus, ordering ICE to release him from custody asap. That is a developing story as we record on Thursday. But that is a major development, and it comes with a finding of some incredibly egregious conduct by the federal government in his case, which we're all familiar with. But have we now have some additional.

Leah Litman (78:39)

Detail on another district court. Judge Breyer, that's Charles, not Stephen, issued a preliminary injunction finding that the president's continued federalization of the California National Guard is unlawful. It opens with this line, quote, the founders designed our government to be a system of checks and balances. Defendants, however, make clear that the only check they want is a blank one, end quote. I feel like, as I was saying, that first sentence, the founders designed our government to be a system of checks and balances. I thought, thought John Sauer would say with one caveat. But Judge Beyer's opinion was stayed until this upcoming week. The federal government has already appealed it to the Ninth Circuit, so there's likely to be some quick appellate developments there.

Kate Shaw (79:19)

And speaking of the Ninth Circuit, the Ninth Circuit issued some additional opinions respecting the court's decision to take on bank the challenge to President Trump's federalization and deployment of the National Guard in Oregon. So one Judge, J. Bybee, did not really see this coming, honestly penned a long statement arguing that the President's deployment of the Guard may violate another provision of law that the parties actually really haven't focused on, and that is the domestic violence clause in the Constitution, which says, quote, the United States shall guarantee to every state in the union a Republican form of government that is a little bit more familiar to a lot of people. But the rest of that phrase says, and shall protect each of them against invasion and on application of the legislature or of the executive, when the legislature cannot be convened against domestic violence. So Judge Bybe suggested the clause meant the 9th Circuit was wrong in the case involving the deployment of the National Guard in California to defer to the president's assessment that one of the conditions authorizing the deployment of the National Guard has been met.

Melissa Murray (80:16)

To which newly appointed Trump Judge Eric Tung said no, he wrote that, quote, judge Bybee's work is, in the end, a great labor producing a mouse, end quote.

Leah Litman (80:30)

And we should have been a reference to a wolf. Should have been a reference to a wolf.

Melissa Murray (80:33)

It's gotta be a wolf. But we should also note that Judge Tung has some issues of his own. So when he was nominated, it came out that he said some kind of rando thing. So in his past, he had said that he believes, quote, in gender roles and that women are simply better than men at some things. I would say one of those things is law. But I digress. He also went on to say that when these radical feminists. Feminists. Try to blur gender roles, they undermine institutions like marriage, Institutions which hold society together. You know what else holds society together? Judge Tong? A constitution. And it seems that that was kind of Judge Bybee's point. And before we gild the Judge Bybee Lilly a little too hard, we should also note that he was appointed to the federal bench by George W. Bush and he, along with John Yu, drafted the so called called torture memos, which were a set of legal memoranda justifying the CIA's enhanced interrogation techniques in the aftermath of 9 11. So just gotta say, Judge Tung, when you've lost the author of the torture memos, where are you exactly?

Leah Litman (81:41)

And where are we? We are at the end of this episode, which means it is time for our favorite things. That's my attempt at my favorite things are wolves. Yes, exactly. My favorite thing is Neriss, the fiercest of all the Norse wolves. No, my favorite wolf is a direwolf.

Kate Shaw (81:57)

I was going to say a direwolf. A direwolf reference I could get behind.

Leah Litman (82:00)

Yeah, yeah, yeah. But actual favorite things. So Don Moynihan had this great post about, you know, Slaughter and the Project Ill, whose will that I definitely recommend.

Melissa Murray (82:13)

I want to call out Alexandra Petrai, friend of the pod. She had a great piece in the Atlantic documenting the Kennedy Center Honor Honors. It's called Trump's Very Weird Night at the Kennedy Center Honors. And I mean, she really just puts her finger on the pulse of all of the weirdness that happened there. And, and I'm not even just talking about the bad plastic surgery, like everything is covered. It's truly a rollicking read. I also wanted to recommend a book, A Flower Traveled in My Blood by Haley Cohen Gilliland, which is about Argentina in the 1970s and 1980s when a military junta would just randomly disappear people. This is a chronicle of the work of mostly women getting beyond their family roles. Judge Tung to try and recover their family members.

Kate Shaw (83:01)

Oh, that's great. It's been on, I think the Times like best books of the year list and I've been meaning to read it. So that's good. I really do too. I want to call just a long piece of investigative reporting that ran in the New York Times late last week by Megan Tuohy and Isabelle Bella Kwai. Pretty incredible investigative reporting on the Tate brothers. That's Andrew and Tristan Tate, these manosphere stars and accused rapists and sex traffickers who have very deep ties to a lot of people in the Trump administration, including like Baron Trump, which I had not known but is detailed in the article. So pretty incredible investigative reporting that seems to have spanned the us, the uk, Romania, where they were living for some time before they were sprung out of their, you know, release limitations and allowed to return to the United States. I mean, on a private plane. Profoundly disturbing dystopic account, but just really incredible reporting. So definitely read that if you haven't. All right, so let's turn to some housekeeping before we go. First up this week on Runaway Country, Alex Wagner is joined by three incredible guests to dig into the chaos at the Pentagon. First, former CIA analyst and former Assistant Secretary of Defense and now Senator Alyssa Slotkin joins Alex to talk about her stance on both the boat strikes and Signal Gate and how it has been in the crosshairs of the President and his allies. Then Ben Rhodes weighs in on the reputational damage and what it says about America on the world stage. And lastly, Nancy Youssef, one of the journalists who gave up her Pentagon press pass rather than bow to the authoritarian rules that Pete Hegseth was seeking to impose pose on the press, shares what it is like reporting from outside the walls while still holding Hegseth accountable. It is a jam packed must listen episode. Tune into Runaway country now on YouTube or wherever you get your podcasts.

Melissa Murray (84:48)

And guess what Stricties? We are headed to the West Coast. Best coast in case you missed it or in case your group Signal chat included an Atlantic journalist and you didn't get all the info. Strict Scrutiny is headed to the west coast for the first time ever. You can catch us on March 6th in San Francisco at the Herbst Theater and on March 7th in Los Angeles at the Palace Theater. You can come for the analysis, but stay for the gentle bullying of Chief Justice John Roberts. Don't worry, he can take it. Tickets are at crooked.com forward/events and you should grab them before they sell out. West Coast Best coast, we're coming for you.

Kate Shaw (85:31)

Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw. Produced and edited by Melody Rowell. Michael Goldsmith is our Associate producer. Jordan Thomas is our intern. Audio support from Kyle Seglin and Charlotte Landis. Music by Eddie Cooper. Production support from Katie Long and Adrienne Hill. Matt de Groat is our head of production and thanks to our digital team, Ben Hethcote, Joe Matoski and Johanna K. Case, our production staff is proudly unionized with the Writers Guild of America east subscribe to Strict Scrutiny on YouTube. To catch full episodes, find us@YouTube.com strict scrutiny podcast if you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

Will Arnett (86:28)

Hey, this is Will Arnett, host of Smartless. Smartless is a podcast with myself and Sean Hayes and Jason Bateman, where each week one of us reveals a mystery guest to the other two. We dive deep with guests that you love like Bill Hader, Selena Gomez, Jennifer Aniston, David Beckham, Kristen Stewart, and tons more. So join us for a genuinely improvised and authentic conversation filled with laughter and newfound knowledge to feed the smartless mind. Listen to Smartless now on the SiriusXM app. Download it today.

Melissa Murray (87:04)

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