Strict Scrutiny: Episode Summary – "Trump’s Onslaught of Executive Orders" (Released January 27, 2025)

Introduction In this incisive episode of Strict Scrutiny, host and constitutional law experts Leah Litman, Kate Shaw, and Melissa Murray delve into the tumultuous first days of the Trump administration's executive orders. The discussion navigates through the complexities of the new administration's policies, their implications for the Supreme Court, and the broader legal culture in the United States.

Observations from the Inauguration The episode opens with the hosts reflecting on the recent inauguration, noting its indoor setting which became fodder for memes referencing historical figures like William Henry Harrison (03:00). They highlight the strategic seating of key figures, such as oligarchs seated above cabinet nominees, signaling the administration's power dynamics. Melissa Murray points out the significant presence of the Supreme Court, with Justice Ketanji Brown Jackson swearing in Vice President J.D. Vance—a connection that raised eyebrows due to Jackson’s previous clerkships for both Justice Clarence Thomas and Chief Justice John Roberts (04:17).

Trump Executive Orders: Analyzing the Onslaught The core of the episode dissects several of President Trump's executive orders (EOs), emphasizing their potential constitutional challenges and societal impacts.

1. Denial of Birthright Citizenship (09:37 – 12:10)

   • Overview: The Trump administration announced an EO aiming to deny birthright citizenship to children of undocumented immigrants and lawful visa holders.
   • Constitutional Concerns: Leah Litman underscores the EO's blatant conflict with the 14th Amendment, which clearly states that all persons born or naturalized in the U.S. are citizens (10:32).
   • Judicial Response: The hosts discuss Judge Coffner's immediate issuance of a temporary restraining order, criticizing the DOJ lawyer's assertion of the EO’s constitutionality (11:30).
   • Quote: Judge Coffner remarks, “Frankly, I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order. It just boggles the mind” (11:31).

2. Rolling Back DEI Initiatives (14:25 – 22:23)

   • Overview: Two EOs aimed at ending Diversity, Equity, and Inclusion (DEI) measures within the federal government and among federal contractors.
   • Implications: Kate Shaw notes the administration's broader intent to dismantle civil rights advancements, pushing for a "merit-based" system that ignores beneficial diversity initiatives (15:37).
   • Quote: Melissa Murray observes, “They are sort of pigeonholing this in order to appeal to the most inflammatory sectors of their base” (21:39).

3. Transgender Policy EO (22:58 – 27:04)

   • Overview: An EO that denies the existence of transgender individuals by enforcing binary gender markers on government-issued IDs.
   • Impact: Leah Litman emphasizes the symbolic and material harm, such as hindering transgender individuals' ability to travel or access services (24:48).
   • Quote: Melissa Murray summarizes, “The federal government does not plan to extend or apply Bostock vs. Clayton County to any other anti-discrimination laws besides Title Seven” (22:09).

4. Crypto and Energy EOs (35:46 – 38:03)

   • Crypto Regulation: An EO establishing a working group to recommend regulatory changes on cryptocurrency, coinciding with the administration's own crypto initiatives.
   • Energy Emergency: Trump declares an energy emergency, an unprecedented move given U.S. status as the world's top oil and gas producer. The hosts critique the timing and purpose, suggesting it's a tactic to hinder renewable energy advancements (36:28).

5. Miscellaneous EOs (38:03 – 42:00)

   • Renaming Landmarks: An EO to rename Denali back to Mount McKinley and the Gulf of Mexico to the Gulf of America, which is largely symbolic and met with resistance from major media outlets (38:03).

Court Culture and Case Analyses The hosts transition to discussing the Supreme Court's recent oral arguments, highlighting the bipartisan involvement of the United States as a party or amicus in all cases heard during the January sitting.

1. FDA vs. R.J. Reynolds (50:49 – 54:56)

   • Issue: Procedural question on whether tobacco manufacturers can file petitions for judicial review in circuits other than their principal place of business.
   • Oral Argument Highlights: Chief Justice John Roberts challenges the FDA's stance on venue, questioning the government's expectations of retailers as merely bystanders.
   • Quote: Roberts states, “It is simply unlikely that Congress would have expected such a person to be able to challenge the order within 30 days after it's issued” (53:20).
   • Justice Thomas's View: He emphasizes the distinction between jurisdiction and venue, hinting at potential biases towards convenience (54:37).

2. McLin Chiropractic vs. McKesson (57:17 – 59:33)

   • Issue: Whether district courts must accept the FCC's interpretation of the Telephone Consumer Protection Act (TCPA).
   • Oral Argument Highlights: Justice Clarence Thomas criticizes district judges for deferring to the FCC without authority, questioning the practicality and fairness of such deference.
   • Quote: Thomas asks, “So does it have anything to do with your [Roberts'] not winning in the Fifth Circuit?” (59:00).

3. Barnes vs. Felix (60:39 – 62:34)

   • Issue: Application of the moment of threat doctrine in excessive force claims under the Fourth Amendment.
   • Oral Argument Highlights: Justice Brett Kavanaugh defends the doctrine, emphasizing officers' split-second decisions during perceived threats.
   • Quote: Kavanaugh asks, “What do you tell an officer who pulls someone over for a traffic violation?” (61:12).

4. Cunningham vs. Cornell University (62:51 – 66:22)

   • Issue: How plaintiffs can establish claims under the Employee Retirement Income Security Act (ERISA).
   • Oral Argument Highlights: The courts grapple with the scope of ERISA in regulating employer practices and retirement plans.

Court Culture Q&A and Listener Engagement The episode features responses to listener questions from the Crooked Discord, particularly regarding the Supreme Court's unanimous decision in the TikTok case. The hosts dissect concerns about data security and content manipulation by TikTok, addressing the implications of the Court's stance and comparing it to broader issues of executive overreach (67:29).

Good News: Supreme Court Decisions Amidst the critical analysis, the hosts highlight a rare win for habeas corpus in the case of Brenda Andrew. The Supreme Court vacated her death sentence, emphasizing that prosecutors cannot introduce prejudicial evidence based on sex stereotypes. This decision sets a significant precedent and underscores the Court's role in upholding constitutional protections (72:00).

Passing of Cecile Richards The episode solemnly commemorates the passing of Cecile Richards, former leader of Planned Parenthood, acknowledging her impactful advocacy for reproductive rights and women's equality. The hosts honor her legacy and contributions to the movement (75:00).

Conclusion The episode concludes with the hosts reflecting on the chaotic first week of the Trump administration's policies, affirming their commitment to providing honest analysis and supporting listeners through the legal and political upheavals (76:08).

Notable Quotes:

• Justice Clarence Thomas: “So what's, what's this all about?” (54:56)
• Chief Justice John Roberts: “It had good reasons to do that.” (55:42)
• Judge Coffner: “It just boggles the mind.” (11:31)
• Justice Brett Kavanaugh: “What do you tell an officer who pulls someone over for a traffic violation?” (61:12)

Key Takeaways:

• The Trump administration's executive orders present significant constitutional challenges and aim to reverse critical civil rights advancements.
• The Supreme Court is actively engaging with cases that test the boundaries of executive power and regulatory authority.
• Court culture remains influenced by the internal dynamics of its justices, impacting decisions on pivotal legal questions.
• Despite the administration's aggressive policies, there are moments of judicial integrity and significant rulings that uphold constitutional mandates.

Further Resources: Listeners are encouraged to engage with Strict Scrutiny through their Crooked Discord community and support initiatives like Vote Save America to combat the administration's extreme agenda.