Podcast Summary: Talking Feds – "Return of the Wrecking-Ball Court"

Host: Harry Litman
Guest: Kate Shaw (Professor of Law, University of Pennsylvania; Strict Scrutiny Podcast Co-host)
Release Date: October 9, 2025

Overview

This episode of Talking Feds presents a candid and in-depth discussion about the Supreme Court's dramatic rightward shift and its implications for American law and governance. Host Harry Litman talks with renowned legal scholar Kate Shaw about the Court’s recent reliance on the "shadow docket" to empower the Trump administration, the pending transformation of longstanding constitutional rules, the fate of independent agencies, executive power expansion, and the high-stakes social and civil liberties cases coming before the Court this term. With major precedents and democratic norms hanging in the balance, Shaw and Litman probe not only legal doctrine but also the motivations and outlooks of the six-justice conservative supermajority.

Key Discussion Points & Insights

1. The Supreme Court’s Active Summer & Shadow Docket Power (00:16–06:20)

• Litman and Shaw agree the "new term" is a misnomer; Court activity over the summer, mostly via the shadow docket, has already given the Trump administration provisional yet highly consequential wins (03:40).
• Shadow Docket Explained: Temporary orders that establish the government’s "status quo" pending full litigation, but are, as Shaw notes, “essentially the whole ball game” when they allow the executive to enact sweeping changes long before formal rulings (03:40–05:00).
• Notable quote:

  "Allowing the administration to proceed even temporarily in some of its efforts is essentially the whole ball game."
  – Kate Shaw (03:40)

• Litman emphasizes win rate disparities: Trump administration prevails in 84% of emergency motions (vs. ~50% in Obama era) (02:45).

2. The Fate of Independent Agencies: Humphrey’s Executor & the Fed (06:20–13:43)

• Current Trend: The Court is poised to overturn "Humphrey’s Executor," thus eroding statutory protections for heads of independent agencies (06:46).
• Broader Implication: President could freely fire heads of key regulatory agencies (NLRB, Consumer Product Safety Commission, EEOC), centralizing power and undermining expertise and bipartisan functioning.
• Unique Position of the Fed:
  • Debate over whether the Federal Reserve can or should be exempted from these changes. Shaw and Litman both argue that any exception for the Fed would be unprincipled, based purely on the catastrophic global/economic implications of politicizing the Fed (11:36–13:43).
• Notable quote:

  "The court might try to manufacture [a distinction]...but if it does that, it's really going to be doing it because it is concerned about what it would do to the US and global economy...not because there is a principled legal basis."
  – Kate Shaw (10:54)

3. Expanding Executive Power: Tariffs & the "Emergency" Doctrine (13:43–16:44)

• Trump’s broad use of the International Emergency Economic Powers Act to impose tariffs unilaterally is discussed as part of a pattern to subsume congressional (taxing) power into the presidency.
• The "major questions doctrine" and deference to the President’s claimed emergencies are scrutinized—will the Court check or rubber-stamp these assertions?
• The overarching danger identified is that of normalizing executive proclamations of "emergency" to justify sweeping powers:
  • Notable moment:

    "This to me is the biggest hovering question out there. Will they greenlight some kind of emergency proclamation even though the courts know he's lying...?"
    – Harry Litman (16:44–17:05)

4. Social Issues Docket: LGBTQ+ Rights, Transgender Athletes, and Religious Claims (16:44–22:22)

• Supreme Court is set to decide a number of hot-button LGBTQ+ cases, including bans/upholdings of gender-related care for youths and First Amendment claims by providers resisting medical guidance (18:59–22:22).
• Childs v. Elzar (heard this term):
  • Colorado bans conversion therapy; therapist claims this is unconstitutional speech discrimination.
  • Shaw expects the Court to side with the speech/religion claim, signaling a likely extension of 303 Creative (wedding website case) logic (21:56).
• Evidence cited: overwhelming medical consensus against conversion therapy and its harms, but the Court appears focused on "viewpoint discrimination" over science.
• Notable quote:

  “Despite the fact that on their face, you would think these come down the same way... it did not seem, coming out of the oral argument, as though the court is going to apply that sort of principle.”
  – Kate Shaw (20:11)

5. Broader Concerns: Judicial Independence & Authoritarian Drift (23:39–28:10)

• Litman shifts to existential questions about the Court’s enabling of unchecked executive power, openly contemplating risks to the "end of the American experiment" (23:39–25:04).
• Shaw suggests the conservative justices view nearly unchecked executive power as compatible with their constitutional vision, even if it's perilous (25:04).
• Litman and Shaw both puzzle over the motivations of Justices Roberts and Barrett—will they ever join with the liberals to save democracy?
  • Barrett’s dismissive comments about constitutional crisis are noted with frustration (26:28–26:33).
  • Notable quote:

    “I certainly don’t think they think they are co-signing the end of American constitutional democracy... But I do think they have a vision... that can coexist with an executive who possesses nearly unchecked power. And I think they're just fundamentally wrong.”
    – Kate Shaw (25:04)

6. Threats to Precedent: What’s Next on the Chopping Block? (28:10–31:55)

• Discussion of whether pillar decisions like Obergefell (gay marriage), New York Times v. Sullivan (press freedom), Griswold (privacy), and incorporation doctrine are at risk.
• Thomas is described as “the true intellectual leader” pushing a "wrecking ball" agenda; Shaw believes New York Times v. Sullivan is "very vulnerable," Griswold is also at risk, but Obergefell may survive for pragmatic reasons (30:00–31:55).
  • Notable quote:

    “If they're not doing what is recognizably legal reasoning, it becomes less and less clear what the point of the Supreme Court is if it's not doing anything different from the officials we elect to channel popular will.”
    – Kate Shaw (31:20)

Memorable Quotes & Timestamps

• "Allowing the administration to proceed even temporarily in some of its efforts is essentially the whole ball game."
  – Kate Shaw (03:40)

• "The court might try to manufacture [a distinction]...but if it does that, it's really going to be doing it because it is concerned about what it would do to the US and global economy...not because there is a principled legal basis."
  – Kate Shaw (10:54)

• "This to me is the biggest hovering question out there. Will they greenlight some kind of emergency proclamation even though the courts know he's lying...?"
  – Harry Litman (16:44)

• “Despite the fact that on their face, you would think these come down the same way… it did not seem, coming out of the oral argument, as though the court is going to apply that sort of principle.”
  – Kate Shaw (20:11)

• "I certainly don’t think they think they are co-signing the end of American constitutional democracy... But I do think they have a vision... that can coexist with an executive who possesses nearly unchecked power. And I think they're just fundamentally wrong."
  – Kate Shaw (25:04)

Additional Insights

• Both speakers describe a Supreme Court that is rapidly transforming the structure of American government, often with little public justification.
• The expansion of executive power—especially through the shadow docket—is normalized despite significant risks to checks and balances.
• Major social and civil liberties precedents could fall, depending on both principle and “pragmatic” limits that may or may not restrain the current majority.

For Listeners

This conversation is essential listening for anyone concerned about the independence of the judiciary, the erosion of longstanding rights and norms, and the broad realignment of power in American government. Shaw and Litman’s discussion goes beyond case law to interrogate the values and calculations driving one of the most consequential Supreme Court terms in modern history.