Strict Scrutiny — "The Shadow Docket Just Won’t Quit"

Podcast: Strict Scrutiny (Crooked Media)
Air Date: August 25, 2025
Hosts: Leah Litman, Kate Shaw, Melissa Murray
Special Guests: Ellie Savitt, Serena Mayeri

Overview

In this packed episode, Leah, Kate, and Melissa reunite to dissect the latest drama emerging from the U.S. Supreme Court—especially its ever-expanding shadow docket. They break down a confounding Supreme Court order in a high-stakes NIH grants case, the proliferation of legal claims challenging the administrative state, and the increasing politicization of government functions. The hosts also critique recent political shitposting, most notably from former President Trump, and discuss threats to marriage equality with Michigan Attorney General candidate Ellie Savitt. In an insightful interview, Kate explores the evolution of marriage law with historian Serena Mayeri.

Main Topics & Key Discussion Points

1. News Roundup: Supreme Court Chaos & Shadow Docket

[01:56–12:26]

• The NIH Grants Shadow Docket Case

  • The Trump administration terminated ~$800M in NIH research grants, claiming a crackdown on "DEI" ("diversity, equity, inclusion") initiatives.
  • Supreme Court's confusing order: In two 5-4 splits, the Court ruled—by one combination of justices—that grant recipients must sue individually in the Court of Federal Claims to recover funds, while another 5-4 block left in place the district court's rejection of the administration's policy.
  • Leah (03:19): “Because ending DEI means more women suffering, more racial minorities suffering...It’s just awful.”
  • Melissa (04:13): “I don’t think it’s inadvertent that the end of DEI...would have deleterious consequences for women or minorities.”
  • The order forces grantees into duplicative litigation and raises the barrier to justice, especially for under-resourced parties.
  • Justice Barrett was the ‘swing’ vote, joining both majorities in the “claim-splitting” regime.

• Troubling Reasoning & the Shadow Docket's Pathologies

  • The Court ignored the harms to research and recipients, focusing instead on the theoretical risk of government not being able to recover funds if it lost later.
  • Kate (08:57): “Some of the worst pathologies of the court's use of the shadow docket.”
  • Leah references forthcoming work on "legalistic non-compliance," noting the Court enables the administration to evade accountability by procedural obstacles.

• Justice Jackson’s Dissent

  • Quote (12:26): “With potentially life saving scientific advancements on the line, the court turns a nearly century old statute aimed at remedying unreasoned agency decision making into a gauntlet rather than a refuge.”
  • Another banger (12:55): “This is Calvin Ball jurisprudence with a twist. Calvin Ball has only one rule. There are no fixed rules. We seem to have two: that one, and this administration always wins.”
  • Hosts propose a new segment: “Jackson’s Actions” to spotlight her vivid, accessible dissents.

2. Trump’s “Truth Social” and Authoritarian Moves

[15:23–19:38]

• Trump’s truth social posts attacking mail-in ballots—incorrectly claiming the US is the “only country” that uses them.

• Melissa (16:34): “Mail-in voting isn’t some newfangled phenomena… It’s actually been around in the United States since the Civil War.”

• Trump also falsely claimed states are merely “agents” of the federal government in elections.

• The hosts stress these assertions are both incorrect and dangerous, threatening the perception and actual functioning of democracy.

• Melissa (18:36): “Truth social posts are not law. That is not how this works.”

• Kate (19:43): “The Constitution actually does assign the federal government considerable power over elections. But it is the Congress, not the President…”

• The hosts analyze the “doomerism” and disinformation as a voter suppression tactic, and a signal to GOP legislatures on restricting voting and pursuing aggressive redistricting.

3. New Fronts in the War on Agency Independence & Federalism

[21:32–25:32]

• Trump-selected FHFA director Bill Pulte’s baseless attack on Lisa Cook (first Black woman on the Fed) for alleged mortgage fraud, referred to DOJ.

• Pattern of political use of DOJ/FBI to harass opponents (e.g., Adam Schiff, Letitia James, John Bolton).

• Melissa (23:54): “What we in the business call authoritarianism.”

• Broader context: targeting of Black women in leadership, using federal apparatus to intimidate, and attempting to occupy cities with Black mayors.

4. More “Shitposting” — Legal Edition

[29:13–34:25]

• Solicitor General John Sauer’s (formerly Trump’s personal lawyer) remarkably partisan legal brief to the Federal Circuit, lauding Trump’s “deal-making expertise” in trade/tariff cases.

• Leah (32:22): “This reads like a True Social post or a Caroline language presser...”

• Illustrates institutions, like the Solicitor General’s office, being eroded or twisted to serve individuals over the public.

• Unlawful appointment of Alina Habba as U.S. Attorney in New Jersey—district court judge rules against her.

• Habba’s response: “We will not fall to rogue judges… just be doing their job respecting the President” ([34:25]).

5. Fifth Circuit Declares NLRB Unconstitutional

[39:43–45:27]

• The Fifth Circuit expands its war on the administrative state, declaring the NLRB’s ALJ structure unconstitutional based on Seventh Amendment/jury trial right notions recently addressed by SCOTUS.
• Hosts use a “mold abatement” metaphor for the spread of radical administrative law rulings.
• Humphrey’s Executor precedent potentially at risk, with the Supreme Court’s muddled (and sometimes contrary) signals emboldening lower courts to attack federal agencies.

6. D.C. Federal Takeover & Use of National Guard

[45:27–46:27]

• GOP-led southern states sending National Guard troops to D.C., raising legal questions about federalization and echoes of Civil War historical analogs.
• Melissa (46:15): “How on earth could this go wrong?... Hard to say.”

Interviews

Interview 1: [49:14–64:40]

Ellie Savitt (Washtenaw Co. Prosecutor & Michigan AG Candidate) on Threats to Obergefell and Marriage Equality

• Should we panic about Kim Davis’ cert petition to overturn Obergefell?

  • No; the particular case is procedurally ill-suited.
  • “This petition implicates important questions about Obergefell, but it does not cleanly present them…” – Thomas & Alito (2019) ([52:05])

• Real threats:

  • Conservative movement’s renewed animus against marriage equality (GOP support down 14% since 2022).
  • Supreme Court reasoning in recent cases (e.g., Dobbs) sets the table for overruling or eviscerating Obergefell.
  • Possibility of federal or state rollbacks, not just outright overturning.

• What can state AGs do?

  • AGs must actively defend marriage equality and prepare for “defensive” legal strategies if Obergefell is rolled back; possibly invoke the 2022 Respect for Marriage Act.
  • States can pass laws independent of federal action to guarantee marriage recognition.

• Why state and local elections matter:

  • State officials, not just federal actors, determine the likely fate of rights (including in close election scenarios).
  • State AG offices should be “incubators of progressive legal talent.”

• Concrete action:

  • In many states, constitutional amendments via popular initiative can protect marriage equality preemptively.
  • Ellie urges voters nationwide to care about Michigan’s race: “Imagine the vote is really close… Michigan’s electoral votes could swing one way or the other… The country’s going to need a Michigan Attorney General who’s prepared to fight for democracy.”

• Ellie’s cultural recommendation: Doja Cat’s new single “Jealous Type.”

Interview 2: [67:42–107:13]

Serena Mayeri (Legal Historian) with Kate Shaw on New Book: "Marital Privilege"

• Why focus on marriage?

  • Legal and social privilege has long been tied to marriage (access to benefits, social security, tax, immigration, etc.).
  • Disparities have increased: “By 2000, it’s 50% among white Americans and about 30% among Black Americans… women with a college degree have the highest marriage rates…” ([93:45])

• How law privileged marriage:

  • Mid-century U.S. law distributed rights and resources through marriage (“marital supremacy”); single mothers and non-marital children faced significant discrimination.

• Legal strategies:

  • Key civil rights and sex equality cases (Reed v. Reed, Frontiero, etc.) are, at core, about marital status.
  • Uncoordinated, bottom-up legal and community activism—often spearheaded by Black, immigrant, or LGBTQ individuals—has sporadically chipped away at marital supremacy.
  • Courts were most receptive to claims by individuals regarded as “innocent children,” less so for adults.

• Functional vs. formal family recognition:

  • Move from formally excluding non-marital families to “functional” standards, but those may still smuggle in bias or require intrusive state judgments about family worthiness.

• Marriage equality as culmination—but limitations remain:

  • “Marriage equality also symbolizes the persistence of marriage as this key source of public and private benefits… There’s a fair amount of agreement… that access to marriage is really essential to equal citizenship.” ([101:02])
  • The institution of marriage retains its elite and exclusionary status even post-Obergefell; marriage gap has widened by race and class.

• Relevance today:

  • SCOTUS’s abortion and privacy precedents (Griswold, Eisenstadt, Roe, Casey, Lawrence, Obergefell) are increasingly precarious in present political moment.
  • The historical through-line: legal and political fights over the family are central to American debates about equality, benefits, and citizenship.

Notable Quotes & Memorable Moments

• Melissa (04:25): “I think that’s kind of the fucking point.” (On the deliberate targeting of research and benefits for marginalized groups.)
• Leah (07:52): “The court’s irreparable injury analysis is, in a word, nuts. This is why I partially called this order a shitpost.”
• Justice Jackson Dissent (12:55): “This is Calvin Ball jurisprudence with a twist...We seem to have two rules: that one, and this administration always wins.”
• Kate (19:43): “[Election power] is Congress, not the President. That is the federal entity that has regulatory authority over federal elections.”
• Melissa (23:54): “What we in the business call authoritarianism.”
• Leah (45:27): “Will they find a way to say two layers of removal restrictions are unconstitutional even though they have already effectively removed one of those layers? ... The vibes here seem pretty off and YOLO so why not?”

Timestamps for Key Segments

• SCOTUS NIH Grants Case/Shadow Docket breakdown: [01:56–12:26]
• Jackson’s Calvin Ball dissent: [12:26–13:53]
• Trump/Truth Social voting comments: [15:23–19:38]
• DOJ/Fed/authoritarian updates; attacks on Lisa Cook: [21:32–25:32]
• Solicitor General and legal “shitposting”: [29:13–34:25]
• Fifth Circuit vs. Administrative State: [39:43–45:27]
• Federal takeover & National Guard in DC: [45:27–46:27]
• Ellie Savitt Interview (Obergefell, state AGs, LGBT rights): [49:14–64:40]
• Serena Mayeri Interview (Marriage Law History): [67:42–107:13]
• Favorite things & sign-off: [107:13–end]

Additional Highlights

• Personal Touches: Hosts share anecdotes—Leah’s open water swim triumph; nail art referencing Taylor Swift; and hilarious takes on Cracker Barrel’s rebrand.
• Book & Media Recommendations: Ann Patchett’s novels, Steve Vladek’s “One First” Substack, The Gilded Age series, Rick Hasen’s analysis of election subversion tactics.
• Calls to Action: Importance of local and state-level engagement, especially with regard to voting rights and civil liberties.

Tone

The hosts seamlessly blend deep legal expertise with sharp wit and irreverence. Justice Jackson’s vivid dissents get special recognition for their clarity and accessibility; the hosts don’t shy away from expletives when warranted, and regularly use biting humor to expose judicial hypocrisy or government overreach.

Summary

This episode is a tour de force of Supreme Court analysis: It unpacks how obscure procedural decisions have enormous real-world consequences for science, rights, and democracy. The team eviscerates the logic of the Supreme Court’s latest “shadow docket” moves, exposes the dangers of election-related disinformation from political leaders, and demonstrates how the fight for equality in America is—as ever—fought agency by agency, right by right, sometimes in the courts, sometimes at the polls. Interviews with Ellie Savitt and Serena Mayeri provide critical context on the fragility of marriage equality and the entrenched roles of marriage and family in the legal fabric of the nation.

For legal wonks, democracy advocates, or anyone seeking both the big picture and the nitty-gritty on what’s happening at the Supreme Court and why it matters—this episode delivers.