Strict Scrutiny — "The Trump Administration's SCOTUS Winning Streak"

Crooked Media | September 29, 2025
Hosts: Leah Litman, Kate Shaw, Melissa Murray
Guests: Sherrilyn Ifill, Jamelle Bouie

Episode Overview

This episode marks the season finale of Strict Scrutiny season six and dives into the Supreme Court’s increasingly aggressive embrace of executive power, particularly under the Trump administration. The hosts analyze a stunning series of recent SCOTUS decisions weakening the administrative state, fast-tracking right-wing outcomes, and demonstrating striking asymmetry in how Democratic and Republican presidencies are treated by the Court.
The back half of the episode is a special panel with constitutional experts Sherrilyn Ifill and Jamelle Bouie, who explore the lessons of the “Redemption Court”—the post-Reconstruction Supreme Court that gutted civil rights advances—drawing parallels to the current Roberts Court’s attempts to pare back the reforms of the 14th Amendment and sideline multiracial democracy.

Key Discussion Points and Insights

1. Supreme Court’s Transformation of Presidential Power and the Administrative State

• Summary of Recent Cases & Unusual Procedures

  • The Supreme Court granted a stay that allowed Donald Trump to fire a Federal Trade Commissioner before formal lower court resolution, violating a law originally upheld in Humphrey's Executor (03:23–05:31).
  • The court agreed to hear the case before judgment—an accelerating and unusual practice used increasingly by this conservative majority to fast-track major rulings (06:05–06:32).
  • Instead of upholding established precedent, the Court seems determined to give the President unchecked removal power, with little regard for congressional statues.
  • “For those of you keeping track at home, that is a major escalation from Humphrey’s Executor. 'Don’t know her.'”
    —Kate Shaw (04:04)

• Erosion of Legal Norms for Political Gain

  • The majority did not explain its decision, leaving a sense that the law now means whatever the Court decides, not what precedents hold.
  • The Court acts swiftly to ensure Republican presidents get maximum power but slow-walks or blocks Democratic executive action.
  • Notably, cert before judgment (an extremely rare move prior to 2019) has become routine: “There was not a single grant between August 2004 and February 2019. This is now the 23rd such grant since then.”
    —Leah Littman (06:05)

• Sharp Dissent and Disarray

  • Justice Kagan’s dissent in the FTC removal case was highlighted for its quiet fury:
    • ⏲️ [08:20] “The majority may be raring to take that action... but until that deed is done, Humphrey's controls and prevents the majority from giving the President the unlimited removal power Congress denied him.”
    • Kagan warns against the use of the emergency docket to transfer authority from Congress to the presidency:
      ⏲️ [10:10] “...our emergency docket should never be used... to transfer government authority from Congress to the president and thus to reshape the nation’s separation of powers.”
    • Leah: “Whispers to Elena, just say lawless.” (10:34)

2. Asymmetric Application: One Set of Rules for Republicans, Another for Democrats

• Empowering Trump, Restricting Biden

  • Republican presidents are given broad powers denied to Democrats. Biden initiatives are blocked while Trump’s are green-lit by SCOTUS.
  • “The unitary executive is all the Republican presidents, across time.”
    —Kate Shaw (13:22)
  • The Trump administration is on a staggering 20+ case winning streak at SCOTUS since April 2025 (13:22–14:16).

• Remedies to Presidential Overreach Under Threat

  • The Court asks whether federal courts can provide any remedy if the president fires officials unlawfully—even under statutes it hasn't (yet) struck down. If not, high-level and career government officials could be summarily dismissed with no redress (14:16–16:36).

3. Retaliatory Prosecutions and Immunity from Accountability

• The Comey Indictment and Weaponization of DOJ

  • Former FBI Director Jim Comey is indicted on ambiguous grounds after political pressure and removal of career prosecutors—seen as a classic case of “vindictive prosecution” (17:25–20:28).
  • Kate Shaw: “So as Leah said at the outset, right now we are outside of the courts, right? ... But there is a very, we think, important connection between the Supreme Court and what has just unfolded in the executive branch ... the case that granted the President this enormous immunity, even for potentially the commission of crimes.” (20:28–21:59)
  • The episode highlights the dangerous precedent set by the Court’s immunity doctrine, suggesting the President can direct prosecutions for political reasons with zero accountability.
  • Leah: “It’s hard to put into words just how scary, red line-y, break glass moment this is... The idea that you can order investigations and prosecutions into people who displease you is the stuff of like cartoonish accounts of authoritarian regimes.” (23:49)

• Suppression of Dissent, Immunizing Allies

  • On the same day as Comey’s indictment, Trump issues a memorandum conflating dissent and terrorism—directing a task force to investigate NGOs for allegedly “aiding and abetting” anti-conservative violence.
    • “It literally just labels certain political views as terrorism.” (26:18–26:23)
  • Allegations emerge that Trump’s border czar, Tom Homan, was recorded taking cash for government contracts; DOJ closes investigation after the inauguration, suggesting selective immunity for allies (28:46–31:35).

4. Shadow Docket Maneuvers and Vast Expansion of Executive Authority

• Foreign Aid Freezing Case

  • The Supreme Court intervenes to enable presidential impoundment of congressionally appropriated foreign aid, on the basis of foreign affairs power—even as existing law (the Impoundment Control Act) specifically forbids such withholding (43:03–51:16).
  • Leah: “The unitary executive is so unitary, it unites all of Congress’s Article I powers, like the power of the purse, in the presidency—now, at least, a Republican presidency.” (49:04)
  • Kagan’s dissent underscores the majority’s disregard for statutory text and constitutional structure (51:21).

• The "Just the Tip" Docket

  • The hosts joke that the Court is barely justifying its sweeping interventions (“just the tip docket”), granting preliminary orders with enormous consequences with almost no explanation (52:03–53:07).

5. Parallels to the Redemption Court: Rolling Back Reconstruction

Special Segment: The Redemption Court and the End of Reconstruction
Guest panel: Sherrilyn Ifill (NAACP LDF, Howard Law) and Jamelle Bouie (NYT columnist)

Background & Definitions

• Reconstruction refers to the decade(s) post-Civil War, in which Congress sought to build a multi-racial democracy through the 13th–15th Amendments and civil rights statutes (59:58–61:26).
• Redemption is the subsequent rollback, driven by white supremacists recapturing political power, violence, congressional retreat, and, crucially, the Supreme Court gutting the scope of the Reconstruction Amendments and civil rights law (61:57–65:23).
• Ifill: “[Redemption was about] reclaiming what was characterized as lost southern honor... the idea of Black people in leadership positions was an affront... that redemption took many forms: violence, congressional inaction, and the Supreme Court narrowly reading out the Civil War amendments.” (62:04)

The Key SCOTUS Cases and Their Modern Echoes

1. Slaughterhouse Cases (1873): 1st big 14th Amendment test—Court guts privileges or immunities, shrinks the amendment’s sweep (71:13–71:59).

   • “[They] read out the privileges and immunities... never touch it again.” —Ifill

2. United States v. Cruikshank (1875): Supreme Court erects state action barriers; white paramilitary violence goes unpunished, undermining Black citizenship (78:02–83:54).

   • “This is the period’s greatest tragedy... Bradley [J.] is the villain... the despair that goes through the Black community at the release [of the murderers]... they recognize they are not protected.” —Ifill

3. The Civil Rights Cases (1883): Court strikes down congressional civil rights protections, again citing “state action” (92:40–94:20).

4. Plessy v. Ferguson (1896): Codifies Jim Crow.

• Hosts and guests draw direct lines from these cases to contemporary SCOTUS moves:
  • Slaughterhouse foreshadows modern narrowing of the 14th Amendment.
  • Cruikshank and Civil Rights Cases invoked in modern dissents (e.g., Justice Thomas).

Modern Parallels: The Current Court as a New Redemption Court

• Selective use of history and legal doctrines:

  • The Roberts Court narrows civil rights protections and federal power, invoking “state sovereignty” rhetoric similar to Redemption—e.g., Shelby County v. Holder (2013) (73:12).

• Chipping away at remedies:

  • Restricting the scope of actionable rights, as with the right to vote and right to seek redress for wrongful firings/removals.

• Justice Thomas's Unique Use of Reconstruction-Era History:

  • Frequently cites Cruikshank to expand gun rights through the 14th Amendment, but not to restore its broader civil rights purpose (87:02–90:16).

• Ifill:

  • “It is about a whole project of constitutional undoing.” (100:19–104:43)
  • The attack on the 14th Amendment has been ongoing since ratification; now it's a "slow-rolling constitutional crisis."

Notable Quotes

• Bouie: “Both [the Roberts Court and Redemption Court] see the 14th Amendment as an obstacle to a less egalitarian society.” (98:23)
• Ifill: “Helping myself see the project that way... got me thinking about a 14th Amendment center, because this is not just about affirmative action in this case or that. It is about a whole project of constitutional undoing.” (104:43)

6. Forward-Looking: What Can Be Done?

• Public Constitutionalism Is Essential
  • Bouie and Ifill stress the urgent need for renewed public education on the Reconstruction Amendments—among the public, lawyers, judges, and policymakers.
  • “Make it a point of discussion with lawmakers: 'What is your constitutional vision?'... I believe in the fullest vision of the 14th Amendment.”
    —Bouie (105:10)
  • Ifill: “We need to learn about Reconstruction... as a sense of empowerment. To empower ourselves to feel like we can be constitutional actors, that we can be founders and framers of a new republic.” (110:18)

Notable Moments and Quotes (with Timestamps)

• “Basically, the Supreme Court is saying the law is now what the Supreme Court will do, not what the law actually is.”
  —Leah Littman (08:42)

• "The rules for what interim policy will look like during the pendency of litigation have fundamentally been different between President Biden and President Trump."
  —Kate Shaw (13:22)

• "It's hard to put into words just how scary, red line-y, break glass moment this is... The idea that you can order investigations and prosecutions into people who displease you is the stuff of like cartoonish accounts of authoritarian regimes."
  —Leah Littman (23:49)

• "How long must the Black man be the special favorite of the laws? Here we are 20 years after the shackles have been removed."
  —J. Bradley via Sherilyn Ifill, quoting Civil Rights Cases (1883) (94:20)

Noteworthy Light Moments

• The hosts' running bit about “the just the tip docket” (52:03) encapsulates their irreverent tone.
• Leah’s “Whispers to Elena, just say lawless” (10:34) after quoting Kagan.
• Taylor Swift “taking money in a bag” lyric referenced to lighten the discussion on bribery and corruption cases (32:02).
• Referencing Drag Race: “But the country is getting fucked up, as they say on RuPaul's Drag Race All Stars.” (52:03)

Timestamps for Key Segments

• SCOTUS and the Administrative State: 02:46–16:36
• Comey Indictment and Selective Prosecution: 16:36–28:46
• Foreign Aid/Shadow Docket (Impunity for Executive Non-Compliance): 43:03–53:07
• Redemption Court Panel — History, Cases, Modern Parallels: 58:12–110:18
• Forward-Looking Advice & Favorite Things: 110:18–116:14

Panelist Recommendations: "Favorite Things" (110:56–115:00)

• Jamelle Bouie: A 90-minute YouTube essay, “How Comedy Was Destroyed by an Anti-Reality Doomsday Cult” — on right-wing comedy, hyperreality, and political culture.
• Sherrilyn Ifill:
  • Australian legal comedy Fisk and the new Charles Sumner biography.
  • King of the North by Jeanne Theoharis—on Martin Luther King, Jr.’s activism outside the South, also highlighting Coretta Scott King.
• Leah & Kate:
  • Jamelle Bouie’s New York Times column “Trump’s Dream of Infinite Presidential Power.”
  • Jimmy Kimmel’s opening monologue after his show’s return—both substantive and rallying.
  • Chris Hayes with Bill McKibben on climate, and an amicus brief warning SCOTUS about chaos from a reckless firing decision at the Fed.
  • Trump’s Truth Social bathroom vanity rant for comic relief.

Conclusion

This episode offers a bleak but incisive analysis: SCOTUS is fast-tracking the consolidation of unchecked presidential power, particularly for GOP executives, at the expense of Congress, the administrative state, and civil rights enforcement. Parallels to the post-Civil War Redemption Court are explicit; both gutted hard-won progress for multiracial democracy. The hosts and guests urge that only robust public engagement—demystifying the real Constitution and Reconstruction history—can halt further erosion of American democracy.

“It is about a whole project of constitutional undoing.” —Sherrilyn Ifill (104:43)

Episode links, sources, and recommended resources are in the show notes. For a deeper dive, check out the recommended readings and Segments featuring Ifill and Bouie on Reconstruction and the 14th Amendment.