Strict Scrutiny Podcast Summary
Episode: The Promise and Perils of Presidential Power
Release Date: January 6, 2025
Hosts: Leah Litman, Kate Shaw, Melissa Murray
Guests: Lindsey Chervinsky, Corey Brettschneider
Produced by: Crooked Media
Introduction
On the inaugural episode of 2025, Strict Scrutiny delves into the intricate dynamics of presidential power in the United States. Hosted by constitutional law professors Leah Litman, Kate Shaw, and Melissa Murray, the discussion is enriched by insights from authors Lindsey Chervinsky and Corey Brettschneider, who explore historical and contemporary challenges to American democracy.
Reflecting on January 6th and Current Context
The episode opens on the four-year anniversary of the January 6th Capitol riot, an event that significantly influenced the discourse around American constitutional democracy and the 2024 presidential election. The hosts note the historical parallels with current events, particularly the re-election of Donald Trump, who had previously incited the January 6th unrest.
Leah Littman remarks:
“[...] Donald Trump will be returning to the office of the presidency. So we thought we would use this pre sitting episode in the new year to have a discussion about the office of the presidency.” (03:18)
John Adams and the Formation of Presidential Norms
Lindsey Chervinsky, author of Making the Presidency: John Adams and the Precedents that Forged the Republic, discusses the challenges John Adams faced as the second president following George Washington. The nascent presidency lacked detailed constitutional guidelines, relying heavily on norms and precedents set by Washington.
Chervinsky explains:
“Article 2 of the Constitution... was just incredibly short. It had very few words. And that meant that much of what it meant to be president was really built on norm and precedent and custom.” (05:22)
Adams grappled with defining the role amidst immense expectations and inevitable criticism, attempting to stabilize the presidency for successors.
The Alien and Sedition Acts: Threats to Democracy
Corey Brettschneider, author of Presidents and the People: Five Leaders Who Threaten Democracy and the Citizens Who Fought to Defend It, examines the Alien and Sedition Acts during Adams's presidency. These acts aimed to suppress opposition, criminalizing criticism of the president, which Chervinsky argues was a direct threat to free speech and democratic principles.
Melissa Murray highlights:
“They were crafting a law that makes it a crime to criticize the President of the United States, but it's not a crime... to criticize the vice president.” (17:29)
This selective suppression aimed to stifle the emerging opposition party, undermining the foundations of a multiparty democracy.
Historical Parallels to Modern Presidential Power
The hosts draw parallels between the early republic's struggles with presidential power and contemporary issues surrounding figures like Donald Trump. The discussion emphasizes the enduring tension between executive authority and democratic accountability.
Chervinsky notes:
“James Madison's commitment to free speech... is essential, especially in moments when the Supreme Court and other institutions may not uphold democratic values.” (27:44)
Watergate and the Fall of President Nixon
Transitioning to more recent history, the episode explores the Watergate scandal and its role in President Richard Nixon's resignation. The grand jury's deliberations and the subsequent pardon Nixon received are scrutinized as pivotal moments that tested the resilience of American democratic institutions.
Murray asserts:
“The pardon was not a good thing for American democracy. We really should have seen Nixon indicted and prosecuted like any other person.” (53:40)
This reflection underscores the importance of holding presidents accountable to preserve constitutional integrity.
Lessons for Donald Trump's Re-Election and Beyond
As Donald Trump prepares for a second, non-consecutive term—the only other president to do so being Grover Cleveland—the hosts and guests discuss historical lessons that could guide current and future responses to potential authoritarian tendencies.
Chervinsky emphasizes:
“Institutions are really easy to tear down. They're really hard to build back up. No matter how flawed an institution is, it's worth trying to improve it and defend it as opposed to trying to build something new from scratch.” (56:13)
Brettschneider adds:
“Ordinary citizens, journalists, and activists have historically been more effective in curbing presidential overreach than institutional checks like the Supreme Court.” (57:22)
Conclusion: The Role of Citizens in Defending Democracy
The episode concludes with a call to action for citizens to actively engage with and claim the Constitution to defend against authoritarian shifts. The historical narratives of Adams, Douglass, and others serve as reminders of the fragility of democracy and the crucial role individuals play in its preservation.
Murray summarizes:
“It's essential in this moment that we claim the Constitution for ourselves and we claim a democratic as opposed to an authoritarian Constitution.” (58:40)
Key Takeaways
- Historical Precedents: Understanding the challenges faced by early presidents like John Adams sheds light on the evolving nature of executive power.
- Threats to Free Speech: The Alien and Sedition Acts exemplify how legislative tools can be used to suppress dissent and undermine democracy.
- Accountability and Institutions: Events like Watergate highlight the necessity of holding presidents accountable to maintain constitutional norms.
- Citizen Engagement: The defense of democracy relies heavily on active citizen participation rather than solely on institutional safeguards.
- Modern Implications: Lessons from history are crucial in navigating and mitigating current and future threats to constitutional democracy.
For those interested in exploring these themes further, the episode references two insightful books:
- "Making the Presidency: John Adams and the Precedents that Forged the Republic" by Lindsey Chervinsky
- "Presidents and the People: Five Leaders Who Threaten Democracy and the Citizens Who Fought to Defend It" by Corey Brettschneider
Strict Scrutiny continues to provide in-depth, accessible analysis of the Supreme Court and its surrounding legal culture, offering valuable perspectives for lawyers, law students, and anyone intrigued by the complexities of American legal and political landscapes.