Strict Scrutiny
Episode: The Lower Courts Punch Up
Date: September 8, 2025
Hosted by Kate Shaw, Leah Litman, and Melissa Murray
Special Guest: Justin Driver (Yale Law School)

Episode Overview

This episode of Strict Scrutiny dives deep into the recent wave of lower federal court opinions challenging the Trump administration’s executive actions, the brewing tensions between the judiciary’s lower and highest levels, and covers the practical, philosophical, and political fallout for the legal landscape—especially around church-state separation and affirmative action. The hosts also feature a substantive interview with Professor Justin Driver about the end of affirmative action in higher education and highlight the growing pushback—and occasional snark—from district court judges against Supreme Court shadow-docket activism.

Main Segments and Key Insights

1. Lower Courts Push Back Against the Administration

[02:12–28:32]

• “Dumb and Dumber / The Pumpkin Spice of the Lower Courts”
  The hosts detail a string of recent lower court decisions finding against Trump administration policies, from National Guard deployment in Los Angeles to immigration and environmental grant cancellations.

  Key Cases and Highlights

  A. National Guard Deployment and Posse Comitatus Act

  • Judge Charles Breyer’s Ruling (N.D. Cal):
    • Trump’s use of the National Guard in LA found unlawful.
    • Violations found under federal statutes concerning federalizing the Guard and the 10th Amendment; the court ultimately ruled the administration violated the Posse Comitatus Act, prohibiting the military from acting as domestic police ([04:02–07:38]).
    • Quote:
      “The court described this effort and the president's announced plans to send the military into other cities as designed to create ... a national police force with the president as its chief. Pretty chilling stuff, all told.” – Melissa Murray [06:34]
    • Breyer warns that broad executive authority, if unchecked, could be invoked to justify military deployment for almost any federal law infraction, including polluting businesses or supposed election fraud.
    • The opinion’s chilling implications: potential SCOTUS intervention could validate the most expansive version of presidential authority over domestic policing.

  B. Trump Loses on Immigration Authority

  • 5th Circuit Decision on Alien Enemies Act: ([08:41–11:29])
    • The panel (Bush and Biden appointees) rejected the administration’s attempt to expel alleged Venezuelan gang members, stating that illegal entry is not the modern equivalent of an armed invasion.
    • Quote:
      “There is no finding that this mass immigration was an armed organized force or forces.” – 5th Circuit opinion [09:13]
    • Judge Oldham’s dissent (SCOTUS hopeful) is mocked as fundamentally deferential to the executive but “tired and lame and misleading.” [11:29–12:26]

  C. Ninth Circuit and Temporary Protected Status

  • The Ninth Circuit upheld an injunction blocking the administration’s efforts to cancel TPS for Venezuelan migrants—though the Supreme Court’s earlier stay hems in practical effect ([12:34–13:16]).

  D. 11th Circuit and “Alligator Alcatraz”

  • 11th Circuit stayed an injunction against a controversial Florida immigrant detention facility with Trump-appointed judges in the majority, prompting frustration at appellate disregard for factual findings (and mirroring SCOTUS's habit) ([13:16–14:19]).
    • Quote:
      “It really makes you wonder where judges ... picked up that they could just ignore factual findings, accord them no deference ... I learned it from watching you, Dad. I mean, SCOTUS.” — Kate Shaw & Melissa Murray [14:19–14:23]

  E. D.C. Circuit and Climate Grants

  • D.C. Circuit (Trump appointees) rules that challenges to canceled EPA climate grants must go to the Court of Federal Claims, letting the administration gut $16 billion in research ([16:42–17:58]).

  F. Humphrey’s Executor & Independence of Agencies

  • The D.C. Circuit defends longstanding precedent protecting independent agency heads, gently trolling SCOTUS for undermining such independence on the “shadow docket” ([17:58–19:27]).
    • Quote:
      “Humphrey's Executor controls this case. Recent developments on the Supreme Court's emergency docket do not permit this Court to do the Supreme Court's job of reconsidering that precedent because we take the Supreme Court at its word ...” – Leah Litman reading from the D.C. Circuit [18:09]

  G. D.C. Circuit and Foreign Aid Litigation

  • The hosts unpack a complex procedural battle over whether canceled foreign aid can be challenged, with courts narrowing available “causes of action” but leaving some paths open ([19:39–24:50]).
    • Sharp Critique of Federal Litigation Strategy:
      Judge Ali highlights that the Administration seems intent on manufacturing emergencies to prompt Supreme Court review.
      • Quote:
        “...to the extent defendants have time pressure and billions of dollars to obligate, that is not an emerg[ency] but a circumstance of their own creation.” – Judge Ali, footnote cited by Leah Litman [24:34]

  H. Federal Circuit Strikes Down Executive Tariffs

  • Federal Circuit (7–4) strikes down Trump tariffs: administration overstepped the International Emergency Economic Powers Act (IEPA) ([25:02–28:27]).
    • Cert pending at SCOTUS; case will add to an already “very trumpy term.”

2. Lower Courts Clap Back at SCOTUS

[30:35–44:47]

• Growing District Court Frustration:
  Judges, tired of benchslaps from SCOTUS for “defiance” of unclear shadow-docket orders, respond with open or pointedly polite sarcasm ([30:35–33:27]).

  • Judge Young’s ‘Apology’ to Justices Gorsuch & Kavanaugh:
    • “It is incumbent upon me ... to apologize to justices Neil Gorsuch and Brett Kavanaugh if they think that anything this court has done has been done in defiance ... I stand corrected. And those justices ... can be assured that this court will absolutely obey the precedential decisions ... as I have done and tried to do throughout all my judicial service.” — Judge Young, with the hosts debating whether it was snark or sincere ([32:12–33:14])

• Media Reports on Judicial Discontent:
  Lawrence Hurley’s NBC News piece reveals off-the-record, sharp critiques from a dozen federal judges (appointed by presidents from both parties) about the Supreme Court's lack of guidance, suggesting broad unease about legitimacy, communication, and growing threats to judicial safety ([33:35–36:28]).

  • Quote:
    “What the Supreme Court has done is inexcusable ... somebody is going to die” — Anonymous judge [34:00]

• Judge Allison Burroughs’ “Epic Footnote”

  • Ruling in the Harvard funding case, Judge Burroughs finds the administration acted unlawfully and takes the Supreme Court to task for issuing “cryptic” shadow docket rulings:
    • Quote (Footnote 9):
      “Given this [shadow docket lack of clarity] ... it is unhelpful and unnecessary to criticize district courts for defying the Supreme Court when they are working to find the right answer in a rapidly evolving doctrinal landscape ...” — Judge Burroughs, as read by the hosts ([41:37–42:18])
    • Subtle shade at SCOTUS: “this is not Calvinball; there are rules.” ([43:36])
    • Hosts note the significance: centrist and establishment judges are openly alarmed by the high court’s behavior.

3. The Shadow Docket Drama and SCOTUS Public Appearances

[44:47–52:25]

• Justice Kavanaugh’s “Interim Docket” Proposal

  • Kavanaugh, at the Sixth Circuit Judicial Conference, suggests fixing the image of the shadow docket by a mere rebranding: call it the “interim docket.”
    • Quote:
      “Call it the interim docket.” — Justice Kavanaugh [44:49]
    • Hosts mock Kavanaugh’s civility-policing and his admission that summary, cryptic orders occur when the justices can’t agree—leaving lower courts to guess the law and then chastising them for errors ([45:06–46:24]).

• Justice Barrett’s Book Tour & The Defense of Cryptic SCOTUS Rulings

  • Amy Coney Barrett touts the intentionality behind opaque opinions and joins Kavanaugh in defending the court’s shadow-docket practices ([48:50–50:14]).
    • Quote:
      “Glossing over the issues is often deliberate ... we're being cryptic and opaque on purpose, and you'll enjoy it.” — ACB (mimicked by hosts) [50:07]
    • She claims the Constitution and the courts are “alive and well,” downplaying the idea of a constitutional crisis ([53:11]).

• Barrett’s Lightning Round Descriptions of the Bench

  • Barrett offers single-word descriptors for each justice in a Bari Weiss interview, notably labeling Ketanji Brown Jackson as “Broadway” (after a cameo in “& Juliet”) with a long, awkward pause, which hosts interpret as subtle disrespect ([53:26–55:18]).

• Hosts Reflect on Costs for Outspoken Justices

  • They note that Justice Jackson’s willingness to speak publicly about SCOTUS dysfunction likely exposes her to intra-court and public antagonism ([57:13–58:01]).

4. Interview: Professor Justin Driver on Affirmative Action’s Demise

[61:56–96:31]

A. What SFFA (Students for Fair Admissions) Really Held

• Major Points: ([61:59–62:54])
  • SFFA banned higher ed admissions officials from using race “qua race,” but did not bar all efforts to increase racial diversity.
  • The Trump administration, however, is pushing for a broader interpretation, warning institutions against even indirect efforts at diversity.
  • SFFA’s fallout: major drops in Black enrollment across elite schools.

B. Equal Protection, Anti-Classification, and Anti-Subordination ([64:36–69:05])

• Core Theories Explained:
  • Anti-classification: No government racial classifications—favored by conservatives.
  • Anti-subordination: No policies that enforce racial hierarchies—claimed by liberals, but (as Justin notes) even critics from the left have argued that affirmative action can be subordinating, reinforcing stereotypes of Black and Brown inferiority.
  • Quote:
    “The story is more complicated than ... liberals believe in anti subordination and therefore affirmative action is a okay. And conservatives ... anti classification. ... Many liberal theorists have said that affirmative action does subordinate.” — Justin Driver [67:11]
  • Thomas’s concurrence lays claim to anti-subordination, but to argue affirmative action itself is the subordination.

C. What’s the Real Effect of Ending Affirmative Action? ([69:05–73:42])

• Claims about “badges of inferiority” from critics misunderstand the actual roots of stigma, which often persist even where affirmative action is eliminated (California’s experience).
• The administration’s true goal is to reduce minority presence on elite campuses—a “new racial balancing.”

D. Diversity vs. Remediation Rationales ([73:42–78:53])

• Diversity became the Court’s legal rationale for affirmative action, due to Bakke (1978) rejecting race-based remediation.
• Empirical research: diversity policies increase law review output by 25%.
• Critics’ concern that diversity per se commodifies minority students’ presence for white students’ benefit.
• SFFA’s originalist opening: maybe remediation can come back via preferences for descendants of enslaved persons (discussion of Freedmen’s Bureau history).
  • Both the Court’s conservatives and some “Volla conspiracy” legal academics see possibility for facially race-neutral remedial preferences.
  • Quote:
    “Universities should contemplate adopting ... preferences for the descendants of enslaved persons, which would go back to ... the strongest justification for affirmative action ...” — Justin Driver [80:30]

E. SFFA’s Unintended Consequences: Victim Narratives & Admissions Essays ([81:35–85:52])

• SFFA could ironically drive even more “victimhood essays,” as students with diversity backgrounds are now incentivized to reveal experiences of discrimination since checking a race box alone is proscribed.
• New admissions pressures may push universities, fearing data exposure, to admit only the “safest” minority candidates with the highest test scores, thus cutting out those with compelling but less quantifiable stories.

F. Where Do We Go Now? Practical Pathways Forward ([88:41–94:14])

• Lawful, Non-Racial Strategies After SFFA:
  1. Geographic-based Preferences: Set-asides for applicants from low-opportunity areas (using tools like Opportunity Atlas).
  2. Tribal Membership: Preferences based on tribal affiliation—explicitly not a racial classification under current doctrine.
  3. Partnerships with Local Schools: Similar to Texas's top-10% plan; can boost URM enrollment by targeting schools, not individuals by race.
• The stakes: declining Black enrollment at elite colleges threatens to ripple through all sectors (business, professions, academia).

G. Optimism and Recommendations

• While SFFA is “calamitous,” universities retain legal room to act; advocates shouldn’t abandon the field.
• Justin recommends Rick Rubin’s The Creative Act (for perspectives on creativity/abundance) and Randall Kennedy’s 1989 article "Martin Luther King’s Constitution" ([94:32–96:16]).

5. Favorite Things & Closing

[96:34–101:55]

• Each host shares recent media recommendations, ranging from Alexandra Petri's essay in The Atlantic, to Ezra Klein’s podcast, to New York magazine’s deep dive into RFK Jr. drama, to romance novels and the latest on Build-a-Bear Senate hearings.
• Show closes with a teaser for next week’s special guest and standard production credits ([99:15–101:55]).

Notable Quotes

• Melissa Murray [06:34]: “The court described this effort ... as designed to create ... a national police force with the president as its chief. Pretty chilling stuff, all told.”
• Judge Burroughs (read by hosts) [41:37]: “…it is unhelpful and unnecessary to criticize district courts for defying the Supreme Court when they are working to find the right answer in a rapidly evolving doctrinal landscape …”
• Justin Driver [67:11]: “The story is more complicated than ... liberals believe in anti subordination and therefore affirmative action is a okay. And conservatives ... anti classification. ... Many liberal theorists have said that affirmative action does subordinate.”
• Kate Shaw [14:19]: “It really makes you wonder where judges ... picked up that they could just ignore factual findings ... I learned it from watching you, Dad. I mean, SCOTUS.”

Timestamps for Major Segments

• [02:12] – Introduction to lower court pushback
• [06:34] – Posse Comitatus Act ruling described as “chilling”
• [11:29] – Analysis of the 5th Circuit’s Alien Enemies Act decision
• [18:09] – DC Circuit on Humphrey’s Executor & independent agencies
• [24:34] – Judge Ali’s footnote on “manufactured emergencies”
• [41:37] – Epic Judge Burroughs footnote criticizing the Supreme Court
• [44:49] – Kavanaugh’s “Interim Docket” pitch
• [48:50] – Barrett on the “deliberate” nature of opaque SCOTUS opinions
• [53:11] – Barrett: “The Constitution is alive and well”
• [61:56] – Justin Driver interview begins
• [67:11] – Driver: On anti-classification vs. anti-subordination
• [80:30] – Preferences for descendants of enslaved persons
• [85:52] – How SFFA will affect admissions essays
• [88:41] – Practical remedies for diversity under SFFA
• [94:32] – Driver’s recommended reading
• [96:34] – Hosts’ favorite things and episode close

Tone and Style

The hosts maintain their trademark mix of deeply informed, accessible legal analysis, irreverent humor, and clear moral advocacy. They are especially candid and biting when discussing the Supreme Court’s opacity, hypocrisy, and the procedural maneuvering of the Trump administration, but also highlight the resilience and creativity of lower courts and legal advocates. Direct quotes, footnotes, and “dramatic readings” punctuate the episode with wit and insight.

For Listeners Who Didn’t Tune In

• This episode frames 2025 as a pivotal, turbulent time: courts are engaged in open resistance against an activist executive, and lower judges are increasingly exasperated with a Supreme Court that issues cryptic commands and then chastises those who struggle to interpret them.
• Professor Justin Driver’s interview is a must-listen (starts [61:56]), exploring how both left and right have misunderstood the real stakes and meanings of affirmative action’s demise, and how the practical and theoretical debates are playing out among administrators, students, and the courts. He leaves listeners with hope that—despite SFFA—there are still viable strategies to pursue genuine diversity and equity in higher education admissions.
• The flavor of the episode is “lawyered but real”: equal parts outrage, humor, and nuanced policy debate.