Strict Scrutiny — Episode Summary

Podcast: Strict Scrutiny
Episode: The Legal Battles Over Trump’s War on Blue Cities
Date: November 3, 2025
Hosts: Leah Litman, Kate Shaw, Melissa Murray

Overview of the Episode’s Main Theme

This episode unpacks the escalating legal and constitutional conflicts sparked by President Trump’s intensifying efforts to militarize law enforcement in American cities—particularly so-called “blue” cities like Chicago and Portland. The hosts analyze ongoing federal court challenges, the limits of presidential authority to deploy federal forces (including the National Guard), the manipulation of statutory powers, and the Supreme Court’s response to these high-stakes legal battles. Additional segments include case previews for the Supreme Court’s November sitting, developments in fringe constitutional arguments (such as third-term fantasies), and the fractured dynamics among Supreme Court dissenters.

Key Discussion Points & Insights

1. The Administration’s Use of Federal Force in Cities

Chicago—Operation Midway Blitz & Court Orders

• The 7th Circuit paused a district judge's order requiring daily in-person reporting by a Border Patrol commander after alleged ICE misconduct during protests (temporary restraining order forbidding use of tear gas, etc.).
• Despite this, other aspects (e.g., mandatory body cameras for agents) remain intact. (06:36–08:16)
• Mandamus sought—rare and only granted for “wildly out of line” district courts.
• Ongoing skepticism about both the credibility of government claims and the criminalization of protest activity.

Memorable Quote:

“The administration is still seeking mandamus in the 7th Circuit... only when district courts are really, truly and wildly out of line...”
—Kate Shaw [07:15]

Criminal Charges Against Protesters

• New spate of indictments against Democratic politicians and protest leaders in Chicago for alleged property damage during demonstrations, widely criticized as retaliation for exercising First Amendment rights.
• Even opponents within the Democratic party denounce the prosecutions as “creeping tyranny” (10:55–11:18).

Memorable Quote:

“It’s an attack on anyone sickened by masked men roaming our streets and shoving our neighbor into unmarked cars. It’s a threat to everyone willing to call this what it is: creeping tyranny.”
—Read by Leah Lippman [11:18]

2. Presidential Power to Deploy the National Guard

• Supreme Court Asks for Supplemental Briefing: Key question—does the relevant statute permit the President to federalize the National Guard only when “regular forces” (i.e., military) are insufficient, or does it also include non-military forces like ICE or CBP?
• Analysis that the Court’s request suggests a lack of consensus and perhaps even internal skepticism of the President’s claimed authority. (14:48–17:50)
• Concern that a ruling here could, if not carefully delineated, open even broader powers via the Insurrection Act.

Memorable Quote:

“Are they actually going to deny the stay request?... Or are they just pushing [the President] into the arms of the Insurrection Act in ways I find really scary?”
—Kate Shaw [17:02]

3. Government Litigation Tactics & Factual Misstatements

• In Oregon, DOJ “gaslighting” on actual deployment numbers used to justify federal action; claims of 115 redeployed officers exposed as grossly inflated (“math is hard—boy math,” quips Leah) (20:46–22:05).
• The panel’s decision was based on erroneous government assertions—demonstrates unreliable factual predicate for emergency powers.

4. Access to Federal Benefits & Judicial Oversight

• District courts rule against Trump administration’s effort to suspend SNAP (food stamps) payments during the government shutdown, rebuking attempts to let millions go hungry despite available funds (23:26).
• Noted pattern of lower courts attempting to hold the administration accountable, sometimes undermined by appeals courts.

5. Supreme Court Watch: Behind the Scenes

• The justices requested additional briefing in the Kim Davis case (same-sex marriage licensing post-Obergefell). Thomas and Alito remain hostile to Obergefell; states like Texas enable judges to refuse same-sex marriages on religious grounds (29:38–31:24).

6. Judicial Personalities and Internal Divisions

• Discussion of NYT article on strategic and emotional differences among the three Democratic-appointed justices (Kagan, Sotomayor, Jackson) [32:46–37:13].
• The contrast between being “tactical” and speaking frankly for the record; Pam Karlan’s advice emphasized the danger of normalization and the need for open dissent (36:18).

Notable Quotes:

“The problem with waiting to speak frankly is… over time you normalize what’s going on… by the time that [the ‘cataclysmic case’] happens, it may be too late.”
—Pam Karlan, quoted by Leah Lippman [36:18]

7. Expanding Presidential Power Abroad

• Trump’s boat-bombing campaign in the Caribbean and now Pacific, with expanding lethal force and undeclared war threats against Venezuela, possibly motivated by a desire for conflict and/or oil (40:25–42:25).
• Comparison to the film “Wag the Dog”—manufactured foreign crises to distract from domestic issues (42:30–42:40).

8. Fringe Arguments: Third-Term Trump?

• Discussion of Senator Tuberville entertaining scenarios for third-term Trump in violation of the 22nd Amendment, and Trump’s own coy statements (43:14–44:02).
• Hosts warn not to take any claimed acceptance of constitutional limits at face value (44:02–45:12).

9. Supreme Court Case Previews (November Sitting)

RICO v. United States

• Whether the “fugitive tolling doctrine” can extend supervised release periods when a defendant absconds (46:03–47:00).

Hensley v. Fluor Corp

• Can government contractors who violate contract terms claim federal immunity from state tort actions? (47:38–50:29)
• Supremacy Clause immunity implications—especially re: state attempts to hold federal officers liable for rights violations during federal law enforcement actions in cities.

Memorable Quote:

“Supremacy Clause immunity is such a big question right now... This is really about whether states can prosecute federal officers when they tear gas protesters or... shoot non-lethal weapons at journalists.”
—Melissa Murray [51:59]

Coney Island Auto Parts v. Burton & Hain Celestial Group v. Palmquist

• Technical civil procedure and jurisdictional questions, but with implications for access to courts and balancing state vs. federal oversight. (55:26–58:11)

Learning Resources v. Trump (Tariffs Case)

• Challenges the President’s authority under the International Emergency Economic Powers Act (IEEPA) to impose widespread tariffs on purported emergency grounds. Does “regulate” = tariffs? Does the major questions doctrine apply as a check on presidential power in this context? Notable for the cross-ideological coalition of amicus filers (60:10–66:30).

10. “Favorite Things” & Cultural/Feminist Notes

• Recommendations include the new Lily Allen album, Judith Resnik’s book on prison democracy, ProPublica’s reporting on the NC Supreme Court, and legal scholarship on executive/war powers.
• Updates on hurricane impacts in Jamaica and calls to action for support (69:44–71:31, 72:15–75:56).

Notable Quotes & Memorable Moments

• On Legal Gaslighting:

  “This is the kind of slapdash hasty, make-it-up-as-you-go-along approach to law and governance that this Supreme Court has apparently endorsed and could continue to endorse.”
  —Melissa Murray [22:54]

• On Supreme Court Dissenters’ Ordeals:

  “It’s an impossible task that the three dissenters have…they all seem really committed to staying the course… empathy and gratitude for them and the impossible position they’re in.”
  —Kate Shaw [36:09]

• On “Kavanaugh Stops” and Judicial Tone:

  “Calling these Kavanaugh stops gets where Justice Kavanaugh lives. He does not want to be the guy for whom these stops are named.”
  —Melissa Murray [19:20]

• On Big-Picture Danger:

  “There’s a kind of normalizing exercise to this whole challenge that we should really surface and make clear.”
  —Melissa Murray [17:50]

Timestamps for Important Segments

• 06:36–08:16 – Chicago court orders on Border Patrol/ICE activity
• 10:55–13:06 – Political protest indictments & government overreach
• 14:48–17:50 – Supreme Court signals in National Guard deployment case
• 20:46–22:05 – DOJ’s inflation of facts in Portland litigation
• 23:26–25:55 – SNAP benefits case, judicial pushback
• 29:38–31:24 – Kim Davis/Obergefell and Texas judicial religious exemptions
• 32:46–37:13 – NYT exposé on differences among Supreme Court dissenters
• 40:25–42:25 – Expansion of bombing campaign and Venezuela escalation
• 43:14–45:12 – Third-term Trump talk; undermining constitutional limits
• 46:03–58:11 – Supreme Court case previews for November sitting
• 60:10–66:30 – Learning Resources v. Trump (Tariffs case) preview and analysis

Language and Tone

Consistently incisive, irreverent, and accessible, with the hosts mixing legal analysis and cultural commentary. The episode is peppered with sharp critiques, humor, and exasperation—particularly at executive lawlessness and enabling by the judiciary.

Conclusion

This episode weaves together a tapestry of the complex, rapidly evolving legal resistance to the current administration’s aggressive use of federal power in blue cities—and the often lackluster or self-interested response from federal courts. The hosts deliver a sharp, witty, and often sobering account of how federal authority is deployed against dissent, how courts (especially the Supreme Court) are contorted to fit political ends, and the crucial stakes for democracy, judicial independence, and civil rights.

For those seeking to understand not just the specifics of today’s legal battles, but what they portend for the rule of law and American civic life, this episode offers rigorous analysis—and, critically, a sense of what vigilance and solidarity may require in the present moment.