Strict Scrutiny Podcast: "The Agonies of Brett Kavanaugh"

Date: November 17, 2025
Hosts: Leah Litman & Kate Shaw (Melissa Murray absent this week)
Podcast Focus: In-depth, accessible, and irreverent analysis of the Supreme Court and adjacent legal culture

Overview

This episode takes listeners through a tumultuous week in legal and Supreme Court-related news, with particular emphasis on Brett Kavanaugh’s emotional response during recent oral arguments, a deep dive into the newly-released Epstein emails implicating powerful figures, and a comprehensive recap of major cases from the November Supreme Court sitting. The tone is characteristically sharp, witty, and deeply attuned to the real-life implications of legal developments.

Key Discussion Points and Insights

1. Breaking Legal and Political News

• SNAP Benefits During Shutdown (04:05-06:17)

  • Recap of litigation compelling the administration to pay SNAP benefits during the government shutdown.
  • Justice Jackson issued an administrative stay; the full Supreme Court later extended it.
  • The matter ultimately became moot after Congress ended the shutdown.

• Trump’s Recent Pardons (06:17-08:08)

  • Trump issued pardons for more than 75 people connected to January 6th and the "Stop the Steal" movement.
  • Hosts express skepticism and concern over possible attempts to expand the pardon power to state crimes:

    "Presidents can't pardon state crimes. Like, full stop, they can't. And yet, I feel the need—Clarence Thomas, Sam Alito, potentially doing the Usher meme: 'Watch this, watch this.'" —Leah Litman (07:03)

• Jeffrey Epstein Email Revelations (08:29-18:34)

  • Newly released Epstein emails (from the estate, not DOJ files) lay bare the depth and breadth of powerful men’s complicity or awareness.
  • Notable figures discussed: Larry Summers, Ken Starr, Brett Kavanaugh (indirectly), Donald Trump, Steve Bannon, Michael Wolff.
  • Hosts highlight the hypocrisy and selective focus of right-wing conspiracy theorists regarding Epstein.

    "There was a ring to protect child abusers that had participation by people, men, at the highest levels of government... Academia. Yeah, that's basically all right." —Kate Shaw (10:01)

  • Deep disgust at Larry Summers complaining to Epstein about MeToo:

    "The idea that you go to Epstein for counsel about the excesses of holding people accountable for sexual misconduct, I mean, I just—no." —Leah Litman (13:12-13:20)

  • Epstein and Steve Bannon discussed tactics to discredit Brett Kavanaugh’s accuser.
  • Multiple emails reference Trump’s awareness/involvement, fostering both “noise and smoke” around Trump and Epstein.

    "At a minimum, suggesting Trump was aware of Epstein's misdeeds and then also suggestive that, like, Donald Trump may have been involved in some of this." —Leah Litman (17:26)

  • Trump’s subsequent attempts to label the revelations a "hoax" while simultaneously ordering investigations into Democrats.
  • Hosts reflect on the intersection of misogyny, privilege, and impunity—especially in the legal and political realm.

2. Legal News: DOJ Action, Political Prosecutions, and Executions

• DOJ Challenge to California’s Congressional Map (21:24-22:12)

  • DOJ, under Pamela Joe Bondi, sided with California Republicans to allege an "illegal racial gerrymander."
  • The hosts respond incredulously, especially given DOJ's inactivity elsewhere.

• Prosecution of Rep. Lamonica McIver (22:39-24:09)

  • McIver, charged after oversight activities at an ICE facility, is facing protracted legal battles judged by hosts to be politically motivated.

• Administration’s Extrajudicial Killings (24:09-25:09)

  • Reports surface that the administration has conducted lethal strikes against alleged narco traffickers, allegedly justified by a secret memo.
  • The hosts outright reject the legal plausibility of this justification and call for accountability for memo authors.

• President of UVA Resignation Letter (25:09-27:00)

  • Former UVA President Jim Ryan’s letter details alleged misconduct involving DOJ, Virginia AG, and UVA Board.
  • Raises questions about legal ethics and institutional independence.

3. Supreme Court Argument Recaps

A. Hensley v. Fluor Corporation (30:33-38:17)

• Case About: Whether military contractors can be sued for contract violations in war zones.
• Brett Kavanaugh’s Emotional Outburst (31:11-33:50)
  • Kavanaugh repeatedly interrupts counsel and colleagues, notably requiring Neil Gorsuch to interject and tell him to let others speak:

    "Let me ask you if I might just finish. Thank you. You’re going to have your shot, my friend." —Neil Gorsuch to Kavanaugh (33:06)

  • Hosts turn the incident into a running joke about male emotional incontinence and "Kavanaugh stops" (both as ICE-related and to signal he needs to ‘stop’).
• Foreshadowing Authoritarianism: Kavanaugh’s extreme deference to presidential and military power, the hosts worry, bodes poorly for accountability and balance.

B. Other Week One Cases

• Rico v. United States (41:06-42:23)

  • Whether “fugitive tolling doctrine” applies to supervised release cases.
  • Justices wrestle with punitive instincts vs. textualism.

• Coney Island Auto Parts (42:23-44:22)

  • Expedited, lively civil procedure argument about relief from default judgment and the reasonable time standard.

• Hain Celestial Group (44:22-47:31)

  • Deals with federal jurisdiction, fraudulent joinder, and remand.
  • Hot mic moment: Staffer remarks, “Civil procedure is my new favorite feature,” to collective amusement.

C. Lander v. Louisiana Dept. of Corrections (48:02-57:47)

• Case About: Whether individuals can get money damages under RLUIPA (protecting religious practices of incarcerated people).
• Alarming Signals: Conservative justices float curtailing damages for prisoners under federal spending power statutes—potentially undermining broad swaths of the legal framework for federal social programs.
• Notable Quote:

  "It seems like they are basically coming for all federal spending programs here." —Leah Litman (48:32)

• Kavanaugh’s Reliance on Super-Clear Statement Rules:

  "You need a clear statement, and 'appropriate relief' is not as clear as it could be in encompassing damages." —Brett Kavanaugh (52:39)

• Host frustration at possible religious liberty double standard: strong protection for Christians, little for religious minorities.

D. Geo Group v. Menocal (60:24-63:03)

• Dispute over immediate appeal rights for ICE contractors sued for forced labor of detainees.
• Hosts optimistic for detainees/plaintiffs, especially given bipartisan support.

E. Fernandez v. United States (63:03-67:19)

• On scope of compassionate release for prisoners post-First Step Act.
• Host frustration at justices’ desire to limit avenues for compassionate release, even in cases of actual innocence.
• Praise for Justice Jackson’s expertise and clarity.

4. Cert Grants, Denials, and Court Dynamics (67:25-71:28)

• Denial of Kim Davis Cert (Obergefell Challenge):

  "The court's denial...generated such unearned good PR for the court because all of the headlines were just 'court turns away request to overrule Obergefell.' And it just made them seem and look less extreme and reactionary than they actually are." —Leah Litman (68:47)

• Grant in Mississippi Absentee Ballot Case:

  • Court to weigh in on counting of late-arriving ballots; pressing timing implications for 2026 midterms.

• Notable Statement in Territories Clause Cert Denial:

  • Thomas and Gorsuch suggest a new interpretation that could shift federal-territorial power balance.

Notable Quotes & Memorable Moments

• On Epstein Scandal Revelations:

  "There was a ring to protect child abusers that had participation by people, men, at the highest levels of government and the, you know, worlds of business, finance, et cetera. Academia. Yeah, that's basically all right." —Kate Shaw (10:01)

• On Kavanaugh’s Outburst:

  "[Kavanaugh’s] behavior was so bad, Neil Gorsuch had to tell him that he was being too rude and taking up too much space. If this ever happens to you, it is A sign you need to do some deep reflection about how you got to this point and that you need to take an emotional lap." —Leah Litman (33:14)

• On Implications for Federal Spending Programs:

  "It seems like they are basically coming for all federal spending programs here." —Leah Litman (48:32)

• On Conservative Judicial Double Standards:

  "This is just another occasion to remind people that there are real questions about whether men are just too emotional to be Supreme Court justices, because this guy was having an actual melty over the prospect that you could sue a military contractor. But please, tell me more about how women ruin the workplace." —Leah Litman (32:31)

Episode Structure & Timestamps

News Recap:

• SNAP stay and shutdown: 04:05
• Pardons and powers: 06:17
• Epstein emails: 08:29

Legal News:

• DOJ suit in California: 21:24
• Political prosecution of Rep. McIver: 22:39
• Administration killings/legal memos: 24:09
• UVA president’s resignation letter: 25:09

Supreme Court Arguments:

• Hensley v. FluorCorp/Kavanaugh meltdown: 30:33
• Rico v. US: 41:06
• Coney Island Auto Parts: 42:23
• Hain Celestial Group: 44:22
• Lander v. Louisiana DOC (RLUIPA): 48:02
• Geo Group v. Menocal: 60:24
• Fernandez v. US (compassionate release): 63:03

Cert Grants/Denials:

• Obergefell/ Kim Davis petition: 67:25
• Mississippi absentee ballot challenge: 68:56
• Territories clause statement: 71:28

"Favorite Things" and Personal Recs:

• Books, music, podcasts: 71:33–74:43
• Note on Matt Gaetz NYT story and social commentary: 74:43–75:51

Tone and Takeaways

• Critical, irreverent, and deeply informed: The hosts balance cutting, often humorous commentary with clear-eyed legal analysis.
• Vehement on hypocrisy and abuse of power: Highlights of the week’s events underscore anxieties about unchecked executive power, judicial overreach, and elite impunity.
• Appreciation for moments of judicial normalcy: The hosts delight in civil procedure cases and the rare instances where the legal system appears to function as designed.

Final Thoughts

This episode captures the energy, outrage, and exhaustion permeating the contemporary legal and political landscape, particularly under the weight of the Supreme Court’s recent moves, the continual revelations of abuse and complicity among elites, and the ongoing attacks on democratic and social welfare institutions. Through sharp wit, judicious sarcasm, and deep empathy, Leah Litman and Kate Shaw make the tangled world of SCOTUS and US law both accessible and indispensable for listeners—lawyers, students, or simply those desperate to keep up with the messy legal drama engulfing the country.