Strict Scrutiny – “SCOTUS Is About to Turbocharge Presidential Power”

Date: December 15, 2025
Hosts: Melissa Murray, Leah Litman, Kate Shaw

Overview

This episode centers on blockbuster Supreme Court oral arguments, with a particular focus on the likely overruling of Humphrey’s Executor in Trump v. Slaughter, the resulting surge of presidential power, and the wide-ranging consequences for the administrative state and campaign finance. The hosts—a trio of constitutional law professors—provide sharp, irreverent, and accessible breakdowns, tracing the implications for democracy, the erosion of precedent, and the ongoing realignment of checks and balances. The episode also touches on related recent cases, key courtroom moments, and cultural headlines from the legal world.

Key Topics & Deep Dives

A. Trump v. Slaughter: The End of Independent Agencies?

[03:42–49:50]

1. Will the Supreme Court Overrule Humphrey’s Executor?

• Main theme: The Court, and its conservative supermajority, seem poised to overrule the 90-year-old precedent that allowed Congress to insulate independent agency heads from at-will presidential removal (e.g., FTC leadership).
• “Stare decisis is for suckers.”
  “They are… ready, absolutely itching to overrule this major precedent… let's be 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.” — Melissa [06:07]
• Discussion of how the Court leapfrogged normal appellate procedure, showing eagerness to take up and blow up Humphrey’s Executor.

2. The Stakes: Administrative State & Oligarchy Risks

• Congress designed the FTC and similar agencies to insulate markets and consumers from monopolistic or oligarchic abuses—with independent leadership.
• Example: Amazon’s FTC settlement after Trump’s re-inauguration, which hosts argue is indicative of oligarchs favoring unfettered presidential agency control.
  • “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…” — Melissa [10:40]
• Other FTC actions: Insulin price-fixing, non-compete rule abandonment, all pointing to an erosion of the agency’s consumer-protective role [10:58–11:42].

3. The Oral Argument: Fan Service, Scalia-worship, and Vibes

• The conservative justices seemed uninterested in the FTC’s actual work, focusing on lionizing Scalia and dismissing precedent.
• Notable exchange:
  • “They just dramatically reimagine what is going on in our system of constitutional governance… They asked [Trump’s Solicitor General] John Sauer: We're right, aren't we?... you’re doing amazing, sweeties.” — Leah [13:00]
  • Scalia cited extensively as a foundational authority, e.g., “Fenris the most dangerous world wolf in, in the history of Norse mythology.” — John Sauer [17:57]
    • “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… This is your brain on fed sock talking points.” — Leah [18:13]

4. Unitary Executive Theory (UET): The Court’s New Gospel

• The UET, as advanced here, holds that all executive branch power is vested solely in the President—including power to remove any official at will.
• The hosts’ translation:
  “This is their kink. Overruling precedent.” — Leah [07:16]
  “Unitary executive theory is straight fan fiction garbage, and you are all a bag of hacks.” — Melissa [25:23]

5. Oral Advocacy: In-Group, Strategic, or Futile?

• Debate over whether putting a conservative (Amit Agarwal) up for the “liberal” side of the case was a good strategy.
  • “I just think, like, they don't care. They're not going to listen… Put up someone who will tell it to them straight...” — Leah [23:12]
  • Contrast drawn with other advocates; reflections on futility given the Court’s mind seems made up [26:04–28:04].

6. Consequences: Massive Reach of Decision

• Potential impact across dozens of agencies: National Transportation Safety Board, SEC, Energy Commission, etc. [48:54]
• May call into question even the continued existence of these agencies, not just their independence [47:55–48:54].
  • “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.” — Melissa [47:14]

7. Gorsuch: Ready to Blow Up Even More

• Justice Gorsuch openly floats reviving the non-delegation doctrine, suggesting maybe Congress shouldn’t delegate at all, hinting at an even wider administrative state gutting [42:03–43:57].
  • “Maybe we're just not thinking big enough, like maybe we should also blow up the agencies themselves…” — Leah [43:40]

8. Hypocrisy Watch: Democratic Accountability and Selective Originalism

• Originalist justices show little interest in actual history, while lauding democracy—except when it comes to Congress, which they largely erase from the constitutional balance.
  • “When did this Court decide it loves democracy so much, because partisan gerrymandering would like a word?” — Leah [33:44]
  • “All that stuff we do on the shadow docket, we’re just kind of freestyling.” — Melissa (riffing on Barrett) [38:03]

B. National Republican Senatorial Committee v. FEC: Campaign Finance Deregulation

[52:39–64:57]

1. The Case

• Challenge to the “anti-coordination” provision that blocks parties from funneling unlimited money to candidates, preserving some remaining limits on campaign finance.

2. Courtroom Tone: Same Club, No Limits

• Conservative justices visibly banter with former Solicitors General on the right, signaling in-group comfort and future deregulatory moves.
  • Memorable moment:
    Kavanaugh to Francisco: “You’re not going to want that cited back to you in a couple of years…” [56:20]
• Candid acknowledgment from challenger side that all remaining campaign finance restrictions are vulnerable:
  • “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...” — Roman Martinez [58:10]

3. No Limiting Principle & Clubby Exchanges

• As in the Slaughter argument, Republican appointees decline to name any lines they won’t cross [57:48–58:29].
• Amicus Martinez urged the justices to adhere to basic justiciability rules (“have some self respect…” [63:38]) and noted the lack of a real live dispute, since neither named party was even a candidate under current law.

4. Notable Quotes

• “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. And we probably will.” — Leah [57:35]
• “The fact that Alito is still mad about this [Obama’s State of the Union critique of Citizens United] almost 16 years later tells you everything you need to know about him.” — Kate [60:19]

C. Other Cases: Quick Recaps

[65:11–69:39]

1. Ham v. Smith (Death Penalty & IQ)

• Issue: How to weigh multiple IQ scores, and whether a rigid 70-point threshold blocks all Atkins claims for the intellectually disabled. [65:42]

2. FS Credit Corp. v. Saba Capital (Implied Private Rights)

• Issue: When can courts find an implied private right of action under federal statutes, especially after the Court’s turn against broad readings?
• Hosts remark on the exclusive, insular, and “ancien regime” tone of the arguments, highlighting the in-group nature of Supreme Court lawyering. [68:14–69:39]

D. Noteworthy Quotes & Exchanges

• “Stare decisis is for suckers.” — Melissa & Leah [04:58]
• “They just dramatically reimagine… our system of constitutional governance. And that was basically all they came up with.” — Leah [13:13]
• “This wolf comes as a wolf… is Fenris, the most dangerous world wolf…” — John Sauer [17:57]
• “This is your brain on fed sock talking points. Like you just start saying things like wolves.” — Leah [18:13]
• “They want to and they can… just vibes, no rationale, no limiting theory…” — Leah [40:01]
• “Who can possibly say what will happen. Like we can't possibly predict it. Like it's a real mystery girl.” — Leah (channeling Barrett) [46:19]

E. News Briefs & Legal Culture

[72:14–81:41]

• SCOTUS remands vaccine mandate case: Possibly portending more religious freedom carveouts for public health laws [72:14].
  • “So measles for everybody. It’s the giving season.” — Melissa [72:31]
• Judicial Ethics Watch: Trump-appointed judge attends Trump rally—hosts debate whether this is ignorance or “just watch me” attitude toward ethics [74:52–76:22].
• Political appointee shakeups in U.S. Attorney’s offices: Alina Habba resigns after being found unlawfully appointed [76:43].
• Federal courts continue to rein in presidential overreach in National Guard cases—though rapid appeals underway [78:39–80:16].
  • “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.” — Judge Breyer, quoted by Leah [78:39]

F. Closing: Favorite Things & Housekeeping

[81:41–end]

• Recommended reading:
  • Don Moynihan’s post on Slaughter and the Project IL [82:00]
  • Alexandra Petrai’s piece, “Trump’s Weird Night at the Kennedy Center Honors” [82:13]
  • Book: A Flower Traveled in My Blood by Haley Cohen Gilliland [83:01]
  • NYT reporting on the Tate brothers’ Trump world ties [83:01]
• Upcoming live shows (“West Coast Best Coast!”):
  • March 6 in San Francisco, March 7 in LA [84:48]
• Recurring theme: Irreverent, incisive, and often darkly comic tone throughout—host banter interwoven with news, analysis, and legal inside jokes.

Useful Timestamps

| Section/Event | Timestamp | |---------------------------------------|-----------------| | Overruling Humphrey’s Executor Recap | 03:42–07:16 | | FTC & Administrative State Stakes | 07:16–13:13 | | SCOTUS Oral Argument Vibes | 13:13–18:36 | | Unitary Executive Theory Explainer | 21:30–22:07 | | Advocacy Strategies Discussion | 23:12–28:35 | | Gorsuch & Nondelegation Doctrine | 42:03–43:57 | | Campaign Finance Case Overview | 52:39–53:51 | | Clubby Exchange (Kavanaugh/Francisco) | 56:11–56:27 | | Amicus Martinez on Wolves, Limit | 58:10–58:29 | | NEPA Vaccine Case News Brief | 72:14–73:50 | | Judicial Ethics Drama | 74:52–76:22 |

Tone and Takeaways

• Language/Tone: Sharp, irreverent, sometimes sardonic (“Stare decisis is for suckers”), academically grounded but always accessible.
• Perspective: Deeply skeptical of the current conservative Court’s approach to precedent, textualism, and separation of powers; critical of the strategic and ideological drift away from settled norms.
• Overall Message: The Supreme Court is set to radically expand the President's power, obliterate remaining agency independence, destabilize campaign finance safeguards, and overturn decades of precedent, all with a sense of self-congratulation and insular fan service. The hosts urge listeners to recognize the democratic and institutional dangers lurking beneath the legal jargon and the (sometimes farcical) courtroom performances.

For legal news followers, public law enthusiasts, or anyone worried about the future of American institutional checks and balances, this episode is a must-listen. The hosts’ wit and insight make sense of complex arguments while calling out both hypocrisy and high stakes.