Strict Scrutiny: Will SCOTUS Say No to Trump’s Tariffs?

Podcast: Strict Scrutiny (Crooked Media)
Hosts: Leah Litman, Kate Shaw, Melissa Murray
Special Guest: Rep. Lamonica McIver
Date: November 10, 2025

Overview

This live episode, recorded at CrookedCon, centers on the Supreme Court’s oral arguments in the high-stakes challenge to President Trump’s sweeping use of tariffs—specifically, whether the International Emergency Economic Powers Act (IEEPA) authorizes the President to impose broad reciprocal and punitive tariffs in response to trade deficits and the fentanyl trade. The hosts break down the legal, political, and practical implications of the arguments while also highlighting the Court's complex relationship with presidential power and judicial independence. Additional topics include the aftermath of recent elections, other headline Supreme Court actions, and a live conversation with Rep. Lamonica McIver about congressional oversight in the Trump era.

Key Topics & Discussion Points

1. Setting the Scene: Political and Legal Context

• [03:20] Recent blue wave elections provided energy and possibly pressured the Supreme Court, especially the Republican appointees, to consider judicial restraint and the optics of independence.
• [04:16] Due to time, the episode forgoes coverage of the DC "Sandwich Guy" acquittal and a shadow docket order allowing the administration to issue passports with sex at birth, which Justice Jackson criticized.
• [14:07] Leah Litman notes parallels with past moments where the Court softened after electoral backlash (e.g., post-Dobbs midterms).

Memorable Moment:
Melissa Murray: "It was like everyone woke up from this collective stupor and recognized that the eggs are still expensive, the kids all have measles, there is no Department of Education, the government is shut down, and... it's all their fault." (03:15)

2. The Tariffs Cases: Legal Framing

Background:

• [06:36] The Trump administration claims IEEPA authorizes tariffs to address "national emergencies"—trade deficits (reciprocal tariffs) and fentanyl trafficking (punitive tariffs).
• [07:29] Kate Shaw: IEEPA lets the President "deal with any unusual and extraordinary threat to the national security, foreign policy or economy" upon declaring a national emergency.

International Drama:

• [08:54] Trump retaliates to a Canadian anti-tariff Reagan ad by threatening a 10% tariff increase. Justice Sotomayor references his public “shitposts” in oral arguments, questioning if the tariffs are about economic threats or presidential pique.

Quote:
Leah Littman: "The President is just doing some global economic hotboxing." (09:00)
Kate Shaw: "[Trump] declared bathroom vanity tariffs necessary and he linked tariffs on upholstered furniture to national security, which does raise the question—is national security a code word for J.D. Vance?" (10:03)

3. Oral Arguments Recap & Analysis

Predicted Outcomes & Justices' Positions

• [16:38] Leah: >50% chance the Court will strike down at least some tariffs; Gorsuch a likely vote, so watch Barrett or Roberts as potential swing votes.
• [18:06] Skepticism about Barrett’s reliability; she floated the possibility that tariff power is included in the President’s embargo powers.

Justice Barrett Watch:
Melissa: "Everyone who's writing their Justice Barrett independent, originalist thought pieces should just put the pen down for right now." (18:47)

Major Questions Doctrine

• [21:31] Kate: Will this doctrine—used to curtail broad executive action under ambiguous statutes, especially against Biden—apply here? Are tariffs taxes, and does abdicating to the executive branch over tariffs amount to an executive power grab?
• [24:35] Thomas: “Tell us why the major questions doctrine doesn’t apply to the President at all.” (24:55)
• [25:34] Leah: Discussion of a possible “foreign affairs” exception to the doctrine, and whether it devolves into a tool for partisanship.

Quote:
Melissa: "The Republican appointees and their emotional support billionaires are absolutely united in their mutual antipathy for taxes and flying commercial." (26:09)

What Counts as ‘Regulate’?

• [36:12] IEEPA authorizes regulation of importation. Barrett/Kagan skeptical if “regulate” includes imposing tariffs. Solicitor General struggled to find precedent, resulting in icy pushback.
• [39:42] Kagan: "It has a lot of verbs, it just doesn’t have the one you want." (39:44)

Presidential Power, ‘Emergencies’ & Hypocrisy

• [29:06] Sotomayor raises global warming as a hypothetical emergency to test the principle-neutrality of the administration's arguments.
• [30:00] Kate—Gorsuch shocks by hypothetically accepting climate change as a real “emergency,” suggesting rare willingness for principle over partisanship.

4. Key Themes & Tensions

Doctrine as Political Weapon

• The discussion reflects on the Supreme Court’s opportunistic deployment of doctrines like "major questions"—robust against Democrats, porous for Republican aims.
• [27:38] Leah: "Major questions doctrine might not just end up being a doctrine that says Democratic presidents can't do things and Republican presidents can. It could also... say Republican presidents can do all things except raise taxes."

Hostility to Taxes & Congress

• The justices' aversion to taxes is a throughline—Republican justices seem likely to find tariffs unconstitutional because they're a species of tax.

Judicial Independence or Performative Restraint?

• [17:22] Striking down tariffs would:
  • Protect the legal legitimacy of the right-wing project.
  • Protect the Republican Party and donors from Trump’s reckless economic policy.
  • Let the Court posture as independent, even when motivated by politics.
• [28:07] Melissa: "Read my lips: no new taxes. No new tariffs either." (28:07)

5. Notable Quotes & Moments

• On administration’s legal logic:
  • "John Sauer is the David Harbour of Solicitors General." (31:26, Leah Littman)
  • "Trickle down tariffs—piss all over the country while insisting that it's raining." (31:07, Leah Littman)
• Justice Kagan, ice-cold:
  • "It has a lot of verbs. ...It just doesn't have the one you want." (39:44, Justice Kagan)
• On the president’s view of trade:
  • “Trade deficits are country killing.” —Paraphrased (31:07)
• Droll historical reference:
  • Melissa likens the argument over “regulate” to the Princess Bride: "You keep using that word. I do not think it means what you think it means." (37:14)

6. ‘We Need to Talk About Justice Thomas’ Segment

• [43:09] The trio notice Thomas, Alito, and Kavanaugh operating as a pro-tariff block, with Thomas running interference for the administration. Alito floats new statutory ideas post hoc instead of evaluating what was actually invoked.
• [45:00] Barrett massages Kavanaugh’s “common sense” argument into the “lesser included” theory: if embargoes are allowed, tariffs should be too.

7. Lightning Round: Quotes and Rapid Fire Games

• [62:01] Tariff trivia and “Truth Social or John Sauer?” rapid-fire round, full of signature Strict Scrutiny wit and ribbing among the hosts.

8. Interview with Rep. Lamonica McIver ([48:17])

• Rep. McIver discusses DOJ prosecution for performing routine congressional oversight—visiting a DHS detention facility in Newark.
• The surreal aftermath: facing criminal complaints after receiving a facility tour and soda from the same ICE agents she allegedly impeded. Describes the stress, the cost (no pro bono defense due to ethics rules), and the political goals behind targeting Democratic representatives.
• Affirmation of the need for political courage, continued oversight, and constituent focus despite threats and chilling effects.
• On the blue wave: “I keep saying it was the first day of the last days of this president and his administration.” (57:24)

9. Breaking Down the SNAP (Food Assistance) Litigation ([75:58])

• Leah Littman and Steve Vladek explain the procedural wrangling around SNAP benefit orders, the administration’s noncompliance, and the significance of Justice Jackson’s administrative stay and procedural ingenuity.
• [80:02] Steve Vladek details the role of circuit justices in emergency applications, why Justice Jackson’s order is notable, and the race against time to deliver food aid.

Quote:
Steve Vladek: "For once, here's actually something tangible that folks who have the ability...can actually do to try to mitigate at least some of the damage: support your local food banks." (91:05)

10. Uplifting Endnotes & Favorite Things ([70:18])

• Shoutouts to judicial moments of resistance, organizing efforts in hopelessly gerrymandered districts, and election night parties.
• Kate reads from Carl Sandburg’s “Chicago” to celebrate a court victory against DHS overreach in Chicago.
• Zoran Mamdani’s victory speech lauded for its inspiration, pro-solidarity message, and petty digs.

Notable Quotes (with Timestamps)

• "These tariffs are a joke. And like so much of this clown car of an administration, the jokes just write themselves." —Melissa Murray [11:01]
• "The Supreme Court never does anything that doesn't serve its own purposes." —Melissa Murray [17:22]
• "Justice Barrett later notes that licenses are like licensing fees, which are kind of like tariffs. ...Maybe if the statute does specifically grant the President the authority to regulate by tariff-ish power, maybe that includes the power to straight up tariff as well." —Kate Shaw [38:07]
• "It's those women ruining the workplace by being so difficult to tell apart." —Leah Littman (after Roberts confuses Justices Kagan/Sotomayor) [46:19]

Timestamps for Major Segments

• Tariffs Case Background: 06:36-11:01
• Political & Legal Context/Impact of Elections: 14:07-15:49
• Oral Argument Recap & Doctrinal Analysis: 16:38-47:34
• Live Interview with Rep. McIver: 48:17-58:46
• SNAP Litigation Breakdown: 75:58-91:14
• Favorites/Uplifting Moments: 70:18-75:12

Takeaways for Listeners

• The court seems more skeptical than usual of unchecked presidential economic powers, but arguments also revealed the flexibility with which the Court applies major doctrines, especially depending on partisan contexts.
• Certain justices still seem determined to rescue the administration with creative interpretations, while others use sharp questions to test logical and principled consistency.
• The ongoing food assistance litigation shows both the stakes of executive overreach and the practical power of lower-court and procedural moves.
• The episode illustrates the importance of continued advocacy, oversight, and organizing, even in the face of official retaliation or performative judicial independence.

Mood & Tone

• Irreverent, sharp, insightful, laced with pop culture and historical references, but also passionate and deeply engaged with the stakes for democracy and ordinary people.

For more, subscribe and check the show notes for helpful links, essays, and book recommendations from the hosts.