Podcast Summary: Strict Scrutiny – Episode: "Trump’s Parade of Clowns, Idiots, and Creeps" (Released November 18, 2024)

Introduction and Context

In this episode of Strict Scrutiny, hosted by constitutional law professors Leah Litman, Kate Shaw, and Melissa Murray from Crooked Media, the trio delves into the tumultuous landscape surrounding the potential resurgence of a Trump administration and its implications for the United States Supreme Court (SCOTUS) and broader legal culture. The episode, aptly titled "Trump’s Parade of Clowns, Idiots, and Creeps," offers a critical and in-depth analysis of the chaotic nomination process and the possible repercussions for American jurisprudence and governance.

Trump Administration's Potential SCOTUS Nominations

Reopening SCOTUS Auditions

The hosts kick off the discussion by addressing the immediate aftermath of the presidential election, emphasizing the ongoing uncertainty in congressional race outcomes. Despite these political tremors, the focus remains steadfast on the Supreme Court's activities.

Judge Jim Ho's Controversial Stance
At [02:09], Leah Litman introduces Judge Jim Ho, highlighting his provocative remarks regarding birthright citizenship. Ho, anticipating a Trump administration eager to reshape immigration policies, audaciously stated, “[He] might be wrong” about the entitlement to birthright citizenship in cases involving “war and invasion” ([02:30]). This stance marks a stark departure from his earlier defense of the Supreme Court's decision in Wong Kim Ark (2011), signaling a potential pivot to align with Trump’s hardline immigration agenda.

Recess Appointments and Constitutional Concerns
The conversation shifts to the Trump administration's rumored interest in utilizing recess appointments to bypass Senate confirmation for Supreme Court nominees. Melissa Murray explains, “[Trump] may make recess appointments of members of his Cabinet” ([16:06]), referencing Article 2, Section 2 of the Constitution. Leah Litman and Kate Shaw elaborate on the legal intricacies and the Supreme Court’s fragmented stance on recess appointments, particularly citing the NLRB v. Noel Canning decision, which delineates the limits of presidential power in this realm ([16:04]).

Potential Cabinet Nominees and Their Implications
The professors outline a litany of proposed nominees, each more controversial than the last:

• Susie W.S. – White House Chief of Staff
  Melissa Murray notes Susie W.S.'s potential historic appointment as the first female Chief of Staff ([26:20]).

• Stephen Miller – Deputy Chief of Staff for Operations
  Known for his aggressive immigration policies, Miller's role could significantly influence the administration's approach to border security and deportations ([26:20]).

• Tom Homan – Border Czar
  Homan, associated with "Project 2025," is characterized as a formidable figure poised to escalate immigration enforcement ([26:59]).

• Lee Zeldin – EPA Head
  As a climate conservative, Zeldin's nomination to the Environmental Protection Agency aims to reverse Biden-era climate protections ([27:54]).

• Elise Stefanik – UN Ambassador
  Melissa Murray critiques the placement of Stefanik in a foreign role, suggesting it sidelines pressing domestic issues ([27:54]).

• Mike Huckabee – Ambassador to Israel
  Huckabee’s nomination aligns with Trump’s foreign policy priorities but raises eyebrows due to his controversial past ([29:00]).

• Marco Rubio – Secretary of State
  Rubio’s shift from previously criticizing Trump to accepting a high-profile role reflects the fluid dynamics within the Republican Party ([29:45]).

• Pete Hegseth – Secretary of Defense
  Described as an "anti-vaxxer Fox News host," Hegseth's nomination raises serious concerns about the possible direction of the Department of Defense ([29:45]).

• RFK Jr. – Secretary of Health and Human Services
  Melissa Murray questions the rationale behind nominating an anti-vaxxer to lead HHS, emphasizing the potential public health dangers ([31:58]).

Constitutional and Political Ramifications of Recess Appointments
Kate Shaw expresses alarm at Trump’s potential use of recess appointments to bypass the Senate: “This is part of asking all of the Republican Party to get in line and genuflect and bend the knee” ([23:04]). The hosts discuss the untested nature of Trump’s proposed adjournment strategy to facilitate these appointments, citing fears of undermining legislative checks and balances ([24:04]).

Notable Quotes:

• Kate Shaw [02:30]: “Maybe just for funsies, as my 12-year-old would say, there's no entitlement to birthright citizenship in, quote, case of war and invasion.”
• Melissa Murray [16:06]: “Under current Supreme Court precedent, some power to make recess appointments.”
• Leah Litman [23:04]: “This is part of asking all of the Republican Party to get in line and genuflect and bend the knee.”

Current Supreme Court Cases and Judicial Culture

Velasquez vs Garland
At [48:47], the discussion turns to Velasquez vs Garland, a case challenging the interpretation of voluntary departure for non-citizens facing deportation. The Supreme Court is poised to resolve a circuit split between the 10th and 9th Circuits regarding whether deadlines falling on weekends or holidays extend the voluntary departure period to the next business day.

Delegati vs United States
Kate Shaw explains that Delegati vs United States questions whether a defendant can be considered to have used physical force through inaction. Justice Jackson's hypothetical involving a lifeguard failing to rescue a child underscores the complex interplay between duty and action ([55:06]).

Nvidia Corp. V. E Omen
The hosts elaborate on Nvidia Corp. V. E Omen, where shareholders allege that Nvidia’s CEO misrepresented the company’s revenue sources, potentially violating the Private Securities Litigation Reform Act (PSLRA). The case examines the necessity for particularity in pleading fraudulent intent and whether expert opinions suffice ([57:22]).

Notable Quotes:

• Leah Litman [48:48]: "He apologizes, I'm not a doctor."
• Kate Shaw [55:06]: "How do you explain drowning?"

Remembering Ted Olson

In a poignant segment, Leah Litman pays tribute to Ted Olson, a former Solicitor General and prominent conservative lawyer who passed away. Olson's complex legacy includes significant cases like Bush v. Gore and Obergefell vs. Hodges, highlighting his nuanced positions on issues such as marriage equality and DACA ([59:56]).

Notable Quotes:

• Leah Litman [62:03]: "He was really warm and open-minded and spoke so lovingly of his family."

Conclusion and Final Thoughts

As the episode draws to a close, the hosts reflect on the challenging times ahead with the potential Trump administration pushing forward a barrage of controversial nominations and strategic maneuvers to reshape the judiciary and executive branches. They express concerns over the erosion of constitutional checks and the rise of unqualified, extreme appointees poised to destabilize established legal and governmental norms.

Melissa Murray poignantly remarks on the overwhelming pace and extremity of the nominations, stating, “It is impossible to digest how insane any one of these things are when all of them are happening at the same time” ([20:49]). The trio underscores the urgency for vigilance, resistance, and the use of humor and satire as coping mechanisms in the face of political and legal upheaval.

Notable Quotes:

• Melissa Murray [20:49]: “It’s just flooding the zone with absolute crap, make it as crazy and as extreme as possible.”
• Kate Shaw [24:13]: “There’s no facial way to suggest that this whatever scheme satisfies those constitutional conditions.”

Final Remarks

In wrapping up, the hosts encourage listeners to stay informed and engaged, highlighting the importance of understanding the legal shifts and their broader impacts on everyday life. They also touch upon their personal experiences and the emotional toll of the current political climate, fostering a sense of community and shared struggle among their audience.

Key Takeaways:

• The potential return of a Trump administration is poised to unleash a contentious and chaotic nomination process for the Supreme Court and executive branch.
• Recess appointments may be exploited to bypass Senate confirmations, challenging constitutional norms.
• A wave of controversial nominees threatens to undermine established legal and governmental institutions.
• Current Supreme Court cases reflect deep-seated legal debates with significant future implications.
• The legacy of influential legal figures like Ted Olson remains complex and impactful.
• The hosts emphasize the need for resistance, resilience, and informed engagement amidst political turmoil.

Notable Final Quotes:

• Leah Litman [66:18]: “We are struggling, so I’m willing to give up on the Constitution and at least on sort of its broad principles.”

Strict Scrutiny continues to provide critical, accessible, and engaging analysis of the Supreme Court and its surrounding legal culture, ensuring listeners are well-equipped to navigate and understand the evolving legal and political landscapes.