← Runaway Country with Alex Wagner
Runaway Country with Alex Wagner
Will the Supreme Court Finally Stand Up to Trump in 2026? (with Melissa Murray)
01:18:50
Are President Trump’s tariffs illegal? Will the independence of federal agencies be a thing of the past? Is birthright citizenship about to be taken away? These are just a few of the consequential questions before a Supreme Court that's hell-bent on destroying obstacles to President Trump's executive power. Alex talks to two plaintiffs at the center of of these cases, Toymaker Rick Woldenberg and former FTC Commissioner Rebecca Slaughter. Then, she sits down with NYU Professor and Strict Scrutiny host Melissa Murray to put it all into context and talk about what the long term impacts will be of a Supreme Court where corruption and partisanship are now out in the open.
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- [00:00]
Alex Wagner
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- [01:00]
Laci Mosley
What's Poppin listeners? I'm Laci Mosley, host of the podcast Scam Goddess, the show that's an ode to fraud and all those who practice it. Each week I talk with very special guests about the scammiest scammers of all time. Wanna know about the fake errors? We got em. What about a career con man? We've got them too. Guys that will wine and dine you and then steal all your coins. Oh, you know they are represented cause representation matters. I'm joined by guests like Nicole Byer, Ira Madison ii, Conan o' Brien and more. Join the congregation and listen to Scam Goddess. Wherever you get your podcasts.
- [01:39]
Alex Wagner
Hello everyone. We are coming up on the end of a year that many of us would very much like to forget. There have been mass deportations and ice dragnets, the Bezos Sanchez wedding, the dismantling of the federal government, Elon Musk's ketamine habit, doubling down on fossil fuels and reversal of climate climate progress. Tucker Carlson interviewing Nick Fuentes, the demolition of the east wing of the White House, Katy Perry in space. I mean, I could really just go on. All of it just awful in different ways. Of course. The most terrible parts of this year have been the result of a president run amok. Trump now sits in a White House construction site, largely unconstrained and surrounded by stooges who have carried out even his most unhinged and often unlawful orders. But occasionally, if there has been any check on Trump's power, it has been thanks to the courts. And I should be clear here, I mean, the lower courts, as we sit at the end of this bruising year, the country is on the precipice of some very, very big decisions, ones that could cement Trump's absolute executive power and reshape American life in a way that outlasts Donald J. Trump and maybe even MAGA itself. And all of these decisions rest in the hands of the nine justices on the Supreme Court. We're talking cases that will determine the future of voting rights, birthright citizenship, gay and trans rights, the independence of federal agencies, and the legality of the Trump tariffs, which you may have noticed are currently asphyxiating the American economy. And if the lower courts have been a powerful check on Trump's worst impulses over at the Supreme Court, it is an entirely different matter. The court's 6:3 conservative majority is populated by men who fly insurrectionist flags over their summer homes and take luxury vacations with right wing activists. So, yeah, the high Court has done a great deal to cement Trump's power and send this country way back in time. And those justices ain't done yet, not by a long shot.
- [03:47]
Rebecca Slaughter
Alex.
- [03:48]
Alex Wagner
I'm Alex Wagner, and this week on Runaway country, we're talking about the political agenda at the highest court of the land. What the justices are considering right now that will make or break our democracy, and also what happens next. To answer these questions, I will be chatting with my friend and fellow crooked media host, Melissa Murray from Strict Scrutiny, a fantastic podcast on all things scotus. Melissa is also a legal scholar, a professor at nyu, and she used to clerk for Justice Sotomayor. So she is literally one of the best in the biz to escort us down this long and winding road.
- [04:24]
Melissa Murray
I just think there's so much going on that it's hard to focus on the court when we're literally watching a monarch autocrat take shape. So that might be part of the problem. It seems like the attention on the court is diminished, but that's because there's just so much other stuff. It's literally like being at a zoo where chimpanzees are flinging feces at each.
- [04:43]
Alex Wagner
Other and at us. Right?
- [04:47]
Melissa Murray
It's like. Like, where do you look first? Where do you duck first?
- [04:50]
Alex Wagner
But first, what is it like to be at the center of one of these landmark Supreme Court cases, taking on the Trump administration and its most unlawful ambitions? What is that like? Well, I spoke to two people who are right smack in the middle of that very specific fight. Both are plaintiffs in Some of the highest profile cases on the court's docket. The first is Rick Waldenberg. Rick is the CEO of toy companies Learning Resources and Hand to Mind family businesses that manufacture educational toys, which they do largely overseas. Rick filed a lawsuit against President Trump's tariffs almost immediately after they were announced.
- [05:29]
Rick Waldenberg
Liberation day was April 2, and I started looking for litigation on April 7. So it took me five days to come to my senses.
- [05:37]
Alex Wagner
In May, a lower court agreed with Rick that the tariffs are unlawful and, in his words, asphyxiating.
- [05:42]
Rick Waldenberg
We were as well prepared as we thought we could possibly be. We'd been moving product out of China. We had stocked up on inventory, and we had a cost cutting plan that went into motion immediately when he started to institute the fentanyl tariffs. But nothing could prepare for 150, 45% tariff. I calculated an Apples apples basis. It would have taken our 2024 total of 2.3 million up to literally 100 million. As ridiculous and as hyperbolic as that sounds, that was a legit number.
- [06:19]
Alex Wagner
The lower court's ruling on Learning Resources v. Trump was appealed because, of course, it was, and now it has reached the Supreme Court. For his part, Rick is undeterred. He considers what he's doing an apolitical cause, and above all, he thinks of it as an honor.
- [06:35]
Rick Waldenberg
The American system depends on someone raising their hand. And that's why it's a great system, that it's possible. I can tell you that outside of this country, some of the people we do business with are shocked, absolutely stunned that we would dare do something like this. In other countries, you can't. In this country, you can. And I think after 250 years, sometimes we forget what makes this place special. This is an example of it. It's the American system on display. It should work this way. Imagine if in your lifetime, you get the opportunity to stand up and defend what James Madison did in 1787. I personally think that the idea conceived of how this government would work, which is one of the great ideas of mankind in the history of mankind. And so the opportunity to defend that, to stand shoulder to shoulder with him, like, who could imagine having that opportunity in your lifetime? We think we're standing up for what America means.
- [07:36]
Alex Wagner
The other person we talked to who's standing up to Trump at the Supreme Court is Rebecca Slaughter, a former commissioner of the Federal Trade Commission. Emphasis on former. Because in March, Becca and the only other Democrat on the commission were fired without cause by President Trump. Fun fact. Trump nominated Rebecca in his first term. Those firings were in violation of an existing Supreme Court precedent known as Humphrey's Executor v. United States, which the court now seems poised to overturn. And if the president is allowed to terminate people from independent agencies like the ftc, the fcc, the nlrb, the Fed, and so on, those agencies will no longer be independent, at least not from the executive branch. That means the president will be able to hand pick people who agree with him or her. But let's be real, him, which has major implications for basically everything. What's on tv, company mergers, company monopolies, union protections. Becca and I talk about how this case represents the largest presidential power grab in nearly a century and could effectively make our government a corporate kleptocracy. Here's our conversation. Rebecca Slaughter, welcome to runaway country. We're all sort of like on tenterhooks, waiting to see what the Supreme Court does. And it feels like your case might be one of the ones we find out about before, I don't know, next summer. Who knows? Who can know anything with this court? But I'd love to just start at the beginning. You're nominated by President Trump in his first term to be a commissioner on the Federal Trade Commission, and then President Biden sort of renews that post for you. You're one of the, I think two Democratic seats under Trump on the commission, and then Trump gets sworn back into office. When that happened this year, did you feel like your position on the FTC was tenuous? Were you worried?
- [09:35]
Rebecca Slaughter
Well, I mean, I have eyes and I read newspapers. So on the one hand, I was very confident that the statute, 100 years of Supreme Court precedent, the work of every president since fdr, all would leave my job protected. On the other hand, I knew President Trump was planning to and watched him take a bulldozer to all sorts of parts of the federal government, at first, metaphorically and more recently literally. And so I knew that that bulldozer could be coming for independent agencies. You know, one thing I want to point out, Alex, when you mentioned that I was originally nominated by President Trump, that's true. But I think an important detail is in both of my confirmations, I was confirmed unanimously as part of a package with Republican appointees. So the Senate, in considering these agencies, not only said, okay, yes, Becca's fine, we'll let her keep doing this, but it is important to us that these commissioners come in in a bipartisan way. There's negotiation that happens there. And so unilaterally changing that upsets not just centuries of tradition, but even the Most recent bargains that were struck by the Senate in confirming me and at the time, Commissioner, now Chairman Ferguson and Commissioner Holyoake together in a package in 2024.
- [11:10]
Alex Wagner
You are a package deal, as it were.
- [11:13]
Rebecca Slaughter
Exactly.
- [11:14]
Alex Wagner
So you are aware of what this president's intentions are at the beginning of the second term. He's not being subtle, he's not being skillful. But take me back to the day when you find out you're fired and when that was and sort of how you received the news.
- [11:31]
Rebecca Slaughter
Well, I think I even need to go back a little bit further from the beginning of the administration. Commissioner Bedoya, the other Democrat on the ftc, and I were watching carefully what was happening at other agencies. We saw the Democrats at the Privacy and Civil Liberties Oversight Board get fired. We saw Democrats at the National Labor Relations Board, the Merit Systems Protection Board. They all got fired. So we were sort of thinking, are they coming for us? I don't know if they're coming for us, but. But we were both very committed to saying no. Our obligation is to do our job, to uphold the oath that we've taken, and not to live and act out of fear. We need to be doing the jobs the best we can. So that's what we were doing. We were both proceeding as well as we could with all of the chaos that was happening in the federal workforce. The day I was fired was March 18th. I worked a full day and I went to my kids elementary school, where I was volunteering in the evenings for the very, very high stakes elementary school production of Beauty and the Beast.
- [12:35]
Alex Wagner
I mean, that is high stakes. You do have two high stakes hats you wear, correct?
- [12:39]
Rebecca Slaughter
My daughter was Belle. I don't want to brag, but she.
- [12:42]
Alex Wagner
Made things really high stakes, very high.
- [12:45]
Rebecca Slaughter
Stakes for this fifth grader. It was like this is all of her dreams and hopes and passion. I was sitting outside the rehearsal space and I checked my work phone and I had an email from someone I'd never heard of in the Presidential personnel office that it was very long, but the upshot of it was, you're fired, effective immediately.
- [13:13]
Alex Wagner
Wow.
- [13:14]
Rebecca Slaughter
So I stepped out into the courtyard of the school, and the first person I called was Alvaro Bedoya, the other Democratic commissioner, and he had the identical email. So then we had to leap into action and say, okay, what do we do next? This hasn't happened in over 90 years at our agency. And the last time it happened, a unanimous Supreme Court said it was illegal. So I think the way I'd describe it is we were both shocked, but not Surprised. We knew it could happen, but it didn't make it any less shocking and disruptive to these institutions, our institution. But they're not the only ones that we serve.
- [13:54]
Alex Wagner
I just to get to the sort of human level of this, you've done some preparation. You're a citizen of the world. You are well aware of what this president is capable of and what his desires are. But you're also in the government to do the right thing by the American people. You're part of an independent agency that conducts really important sort of like oversight for foundational, sort of democratic values. And you're at your daughter's performance of Beauty and the Beast, where she's playing Beauty, which is like, as a mom, a big deal, and as a Disney fan, a big deal. So what did you do? I mean, how did you feel about it? In that moment?
- [14:36]
Rebecca Slaughter
My first thought was, okay, how do I respond? Appropriately, professionally, look out for the people on my team that need to be looked out for. That was my first concern. You know, the people who work for me, how is this going to affect them? And how can I make sure that they are as safe and secure as possible? And then how can I protect my family? Because this was also breaking news. And, you know, I live in the suburbs of D.C. and so I was getting alerts on my phone about me. And what I really was worried about was my kids hearing from other kids that something that sounds very scary had happened to their mom. And I wanted them to know that we were going to be okay as a family and as people, and to not feel scared or to misunderstand what was going on, even as they could understand that I was upset. And this was not good from my perspective. So I was trying to juggle all of those things while pacing in an elementary school courtyard. So I did a press conference from the parking lot of the school on my phone that evening while the rehearsal was running. And I was able to make it to all of the rehearsals and all of the performances, because the one thing I kept saying, when people are like, oh, you can bow out. We can step in. And I said, no, these people can try to take my job, but they cannot take drama, drama club and the joy of performance from me and these elementary school kids.
- [16:07]
Alex Wagner
You may try to dismantle the independence of federal agencies, but you will not take Beauty and the Beast from me.
- [16:14]
Rebecca Slaughter
Correct? Correct. You're not coming for this small slice of joy that these kids have. Like, it must be undisturbed. But also, I think, you know, it's less. It's selfish as much as selfless, because for me, it's. It was a really fun, wonderful grounding thing to be a part of when my professional life felt like it was in a very public dumpster fire.
- [16:38]
Alex Wagner
Well, right now, you're the lead plaintiff in a case making its way to the Supreme Court that I believe Matt Ford in the New Republic basically said it could be the largest sort of presidential power grab since the New Deal, and that this is, you know, if this really has your case, depending on how the court decides, it could change the really American society, the way in which companies and corporations are able to sort of prey upon American consumers, the sort of, you know, officially making it a corporate kleptocracy up there at 1600 Pennsylvania. I mean, just the implications of all of this are vast. And I think it's really interesting to know that even when you are central to this massive historical Supreme Court case, you're also just a human being that is a mom trying to put one foot in front of the other.
- [17:30]
Rebecca Slaughter
That's true. And, like, that's also true of every other person who's in the middle of the upheaval of federal government, whether it's like the, you know, person who's been a mine safety worker for decades who lost their job, or like, anyone who works at usaid. Like, these are all humans who are public servants and are in the middle of this massive upheaval. And the upheaval has huge stakes. But also in, like, the micro level, these are people doing work for their fellow Americans. And I think it's really easy to lose sight of that when we hear lots of rhetoric about deep state bureaucrats.
- [18:08]
Alex Wagner
Sure.
- [18:09]
Rebecca Slaughter
Which I think is really unfair.
- [18:11]
Alex Wagner
And I'm 100% with you on the. Putting a face back on the bureaucracy and reminding people that these are civil servants who are trying to make the country better and we're functional. But you have become. I mean, you're doing podcasts, you're doing TV interviews. You decide to sue the federal government, which is a very, you know, and now it's. We're waiting for the Supreme Court decision to be handed down. How'd you make that decision? I mean, it's a. What happened to you has, as. As I just said, like, historic implications. So maybe it wasn't a huge decision to say, I'm gonna go out there and do this, but can you walk me through that process?
- [18:46]
Rebecca Slaughter
Look, candidly, doing media, doing podcasts, this is not my comfort zone. It's not the thing that I have been the most excited about in my career, I'm getting more comfortable. I've been thinking about this as a growth year, but it's not my favorite. But the reason I'm doing it and the reason I'm in the lawsuit is because the stakes are so high and because I think the issues are so, so important. And that's true in a lot of places. And a lot of people are on the other side of actions by this administration and they're not in a position to push back. They don't have the community familial financial support to stand up in court or in whatever way is appropriate. And I do. And if I have that, if I have those resources and I choose not to do that, I would not, I would feel terrible. That would feel really bad because I think if I can't do it, who, if I won't do it, who will do it? And I'm so mad in my head about the institutions, especially the extremely wealthy institutions, law firms, universities that have ceded principles on which I think they have relied for a really long time in the face of some of these threats. And so I feel like it's important not to do that, but it's also important to stay grounded in the middle of it. But we can talk about the stakes because that is like I keep saying to people, this case is, it's technically about me, but it's very, very much not about me. It is about the organization of the federal government as Congress designed it for a reason and whether one president is going to be able to upend that. Not by getting new laws passed, not by legislative negotiations, not by convincing the public, but by ignoring the law as it's written and has been enforced for over a century and asking the Supreme Court to accept that, that's so just structurally that's a big deal. But why do these laws matter? What is an independent agency? People say, Becca, shouldn't the President be able to fire whoever he wants? And I think what we have to step back and look at is actually Congress set up agencies, the Federal Trade Commission and about two dozen others as multi member bipartisan independent boards and commissions. And it gave these agencies the powers that they have because they have that structure. They did not want these agencies to be single headed, politically influen, influenceable, subject to political influence. It's better English and that's really different. And what do these agencies do? So the Federal Trade Commission investigates competition, antitrust violations, consumer protection, privacy, matters of real huge stakes to individual people. There's the Consumer Product Safety Commission that deals with unsafe products on the market. There is the sec, which deals with our securities markets. There's the Federal Communications Commission, which deals with telecommunications markets. And we've already seen this year what happens when the President tries to exercise political influence over the Federal Communications Commission. Cuz he doesn't like a comedian making jokes about him.
- [22:17]
Alex Wagner
So conversation. Jimmy Kimmel reference.
- [22:20]
Rebecca Slaughter
That was a Jimmy Kimmel reference. Yes. Sorry, I didn't mean to be oblique. That was meant to be an explicit Jimmy Kimmel reference.
- [22:25]
Alex Wagner
I think people are keyed in on it. I think they know we're watching.
- [22:28]
Rebecca Slaughter
Another example in real time with this debate about Netflix and Paramount and Warner Brothers Discovery that the President has basically explicitly said he's gonna be involved in. Which buyer gets to pick up an enormously significant and influential media asset. And not only is he gonna be involved in it, he basically is going to play favorites based on the quality and the content. Not the quality, the content of the coverage that for example, CNN does. That is a radical, radical difference in how our laws are supposed to be administered.
- [23:11]
Alex Wagner
More of my conversation with Rebecca Slaughter right after this break. Runaway country is brought to you by Zebiotics Pre Alcohol. I have got to tell you friends about this game changing product I used before a night out with drinks. It is called pre alcohol. From holiday parties to festive toasts by the fire, to just parenting in the holiday season. This time of year is full of moments to share a drink with friends and family or just by yourself, I have to say sometimes it's fine to have one by yourself. Whether you're celebrating a year's end win or just relaxing after a busy day, being ready for the next morning still matters. Don't I know about it? Christmas parties, holiday dinners, late night gift wrapping. I feel seen late night gift wrapping with a glass of eggnog. And that would be spiked eggnog to you junior. It is the season for celebration. Just don't forget Zebiotics Pre Alcohol Probiotic Drink Zebiotics Pre Alcohol Probiotic drink is the world's first genetically engineered probiotic. It was invented by PhD scientists to tackle rough mornings after drinking. Here's how it works. When you drink, alcohol gets converted into a toxic byproduct in the gut. It is a buildup of this byproduct, not dehydration, that is to blame for rough days. After drinking, Pre alcohol produces an enzyme to break this byproduct down. Just remember and remember carefully to make pre alcohol your first drink of the night. Then drink responsibly and you will Feel your best tomorrow. Listen, there are times when I forget to bring those little magical vials with me and I regret them each and every time. Every time I have pre alcohol before drinks I notice a total difference. The next day I can go play tennis with the exception of my knee that always blows out, but it's not cause of my body. No siree. If I've taken a Zebiotics I I am all good again except for my knee. After night out I can confidently plan on being an amazing parent, writing really sharp, incisive posts on my substack, hosting a podcast and making chicken nuggets without worry. So make the most of every toast this holiday season. Just don't forget to bring pre alcohol along for the ride. Go to ZBiotics.com Alex to learn more and get 15% off your first order when you use Alex at checkout. ZBiotics is backed with a 100% money back guarantee, so if you are unsatisfied for any reason they will refund your money, no questions asked. Remember to head to zbiotics.com Alex and use the code Alex at checkout for 15% off.
- [25:49]
Laci Mosley
What's Poppin listeners? I'm Laci Mosley, host of the podcast Scam Goddess, the show that's an ode to fraud and all those who practice it. Each week I talk with very special guests about the scam scammiest scammers of all time. Want to know about the fake errors? We got em. What about a career con man? We've got them too. Guys that will wine and dine you and then steal all your coins. Oh, you know, they are represented because representation matters. I'm joined by guests like Nicole Byer, Ira Madison iii, Conan o' Brien and more. Join the congregation and listen to Scam Goddess wherever you get your podcasts.
- [26:30]
Alex Wagner
I think at this point the American public is more clued into the importance of having a sort of regulatory infrastructure around this president, AKA guardrails. And I would hazard a guess that it's a popular opinion that the President shouldn't have an unfettered access to everything at all times and you know, companies shouldn't be doing his bidding and a press should be independent and free. And like another sort of a lot of there is a very principled fight here that you are fighting and yet the Supreme Court is gonna be the one that makes this decision. And what we know of the Supreme Court is by and large they have taken the shackles off to the degree that they existed. They are really into this unified unitary executive Theory giving the President as much power as possible. And on this particular issue, right, where you and I, I think, see something like the FTC or the FCC or any or the SEC Alphabet soup, these are the sort of bulwarks against executive overreach. Brett Kavanaugh, one of the justices in the court, sees it as sort of in the opposite light. This is a quote from what he has written on this front. Because of their massive power and the absence of presidential supervision and direction, independent agencies pose a significant threat to individual liberty and, and the constitutional system of separation of powers and checks and balances. Literally the inversion, which is that you guys are the problem and you need to be supervised by the President. What do you make of that and what's your level of optimism here as your case waits to be decided at the court?
- [28:07]
Rebecca Slaughter
Well, substantively, I disagree. You know, I think the President retains a substantial amount of influence at these agencies under the statute without being able to have absolute control. So the President nominates all the commissioners from both parties, and we serve staggered terms. So any president over the course of his administration gets to nominate multiple of these commissioners, and usually all because people turn over sort of faster than their terms. The President requests the budget for the agency, the President designates the chair of the agency. So if the President doesn't like what a chair is doing, he can pick a different chair from among the other commissioners. So there's still plenty of presidential control, number one. There's also lots of congressional oversight. I probably testified a dozen times in Congress between confirmation and oversight hearings. And we have to go to Congress and be accountable to them for our budget, how we spend money, action. So I disagree with the idea that there is limited political accountability. I will also tell you this hasn't come up in the legal arguments, but just for me, as a human, I have never understood the idea that a term limited president provides more political accountability than oversight through Congress where members are up every two years. What is the political accountability when decisions are being made by a term limited president who can't run? Again, just as a person, that doesn't make sense to me.
- [29:37]
Alex Wagner
But that, that is but a detail to Brett Kavanaugh.
- [29:40]
Rebecca Slaughter
I know that has not been a part of the legal arguments. And my lawyers are much better at all the legal side than I am. I'm just sort of giving you my armchair lawyering account of it. So that's what I think. One of the misimpressions is the idea that this is bureaucrats run amok rather than, I think, responsible leadership crafted as part of a bargain by Congress with President. So the other thing to remember is a president signed the FTC act and the SEC act and the FCC act and all of the other bills that set up these agencies. And by the way, we have all even talked about the Fed, which is another huge looming issue here, because the Fed is a similar, the exact same structure. And there's no principled way to distinguish between a unitary executive that requires control of the Fed, of the ftc, but not of the Fed. Like, that's. That's not a thing. Okay, so then your second question. The thing I mean.
- [30:42]
Alex Wagner
Well, just given where this court is at and the questions they asked when the case was heard and the position of Kavanaugh and the other conservatives on.
- [30:48]
Rebecca Slaughter
The court, I mean, here's how I think about it. Number one, I think a lot about the adage, former boss of mine said that our obligation is to seek justice even if we're not guaranteed to achieve it. I feel very strongly about making the arguments and standing on the principle. And part of the reason I'm talking to you, I'm talking to the press, and like I said, nothing personal to you, but not my favorite thing to do and is because I want people to understand why this matters and that it's not just sort of a cloistered, ivory tower academic distinction, but it's one with real stakes for the people who rely on the institutions of government to protect them in our economy, in the markets. So I think it's important to do the right thing, even if you're not guaranteed to win, number one. Number two, I also think that there's limited value in tea leaf reading from oral arguments. Like, we don't know what will happen after the oral arguments on the aca. Everybody thought that law was doomed and the decision came out differently. So who knows? It's absolutely worth having the conversation. And then if we were not to prevail, I think a thing that I hang onto all the time is that it is much more important to be on the right side of history than on the winning side of a particular case. And over the course of our country's history, there have been a lot of really bad Supreme Court decisions. Like, there is a whole. There's a whole legacy of decisions that come down at the time, and then history shows how wrong they were and the country moves to correct them, whether through statutory amendment or constitutional amendment or political change or just overturning of the decision. You know, like Dred Scott Plessy V. I'm gonna say there's like, I mean, and those are the ones that everybody knows off the top of their head. But there are dozens and dozens in the centuries our country has been around of Supreme Court decisions that have certainly not stood up to the test of time and get reversed. And so that, you know, that is also something that I bear in mind. And then the last thing I think is, what's the alternative? What's the alternative to being in this case? That might come down in a way that I think would be very bad. It would be ducking out of the case and ducking out of the fight to avoid that bad decision. But if it's going to come, it's going to come. And I would not feel better taking a pass on the principles about which I care and to which I have dedicated my career. So, you know, those are. Those are the thought cycles that I go through. But it can feel discouraging to read a lot of negative commentary about the prospects of the case. And so then I just try to focus on what I can control in my time and how to do the right thing in the right way for the right reasons.
- [34:03]
Alex Wagner
Well, listen, it ain't over till it's over, as you say. It's about planting a flag in the ground and saying we will not abide this and we'll see what the court says and we'll see how it all shakes out in history.
- [34:17]
Rebecca Slaughter
Yeah. Can I actually make an edit? It's not only that it ain't over till it's over. I don't even think it's necessarily over when it's over, because should we lose, that's when people start to see the real life consequences of these kinds of decisions, which, like I said, can feel very academic, but I think are in fact really important for everyday people. And that's how things change over time. When people are like, oh, wait, no, this is bad for me. This isn't just like lawyers lawyering. This affects my ability to get the support or relief or protection I need and to which I am entitled from the federal government when I'm not an oligarch, when I'm not a massive ballroom donor, when I'm just a working American, like the government should be on my side. And when they see that it's not and how those favors play out, I think that's how change happens. And so that's part of why I think it's important not only to do the case, but to talk about it and help people understand why anyone outside of the Beltway should care about the Alphabet soup of agencies and what their leadership structure is.
- [35:27]
Alex Wagner
You make a very compelling case both for winning by potentially losing and just winning for winning's sake. Thank you for, you know, explaining to all of us what the stakes are and just what it's like to be at the center of a really big, really important fight. Thanks for fighting it.
- [35:43]
Rebecca Slaughter
Thanks, Alex. Thanks for having me.
- [35:46]
Alex Wagner
My conversation with strict scrutiny is Melissa Murray right after this break. This podcast is supported by the Defending Our Neighbors Fund. Across the country, immigrants are facing family separation from wrongful detention and deportation without due process or access to legal support. In 2024 alone, there were more than 2.5 million immigration court cases without legal representation. That means millions of people were denied the most basic protection we expect from our justice system, the right to a fair process. Powered by people like you, the Defending Our Neighbors Fund is providing access to life saving legal aid to families in crisis. But they urgently need your help to meet unprecedented demand. The government is pouring billions of taxpayer dollars into enforcement while slashing funding for legal aid. And that makes your support more urgent than ever. Help defend your neighbors and keep families together. Donate now at defendingourneighbors.org fund what's Poppin listeners?
- [36:57]
Laci Mosley
I'm Laci Mosley, host of the podcast Scam Goddess. The show that's an O and all those who practice it. Each week I talk with very special guests about the scammiest scammers of all time. Wanna know about the fake errors? We got em. What about a career con man? We've got them too, guys that will wine and dine you and then steal all your coins. Oh, you know, they are represented because representation matters. I'm joined by guests like Nicole Byer, Ira Madison iii, Conan o' Brien and more. Join the congregation and listen to sing Scam Goddess wherever you get your podcasts.
- [37:36]
Alex Wagner
Melissa Murray, I think about you often as the news from the highest court in the land continues to be a drumbeat of negative horse.
- [37:46]
Melissa Murray
That's great.
- [37:47]
Alex Wagner
No, I don't. I won't.
- [37:49]
Melissa Murray
No, I'm like, I think of you as the world falls apart and Brett Kavanaugh strokes a hairless cat.
- [37:55]
Alex Wagner
Well, in the way that people who are like drowning think of life's and they're like, this person can help me understand. I'm very happy to have you on this podcast. I'm very happy that we're colleagues at Crooked Media even though we're never in the same room at the same place. But right before I started speaking with you, we spoke to Rebecca Slaughter, who is the lead plaintiff in Slaughter v. Trump. And I know you guys on your brilliant podcast, Strict Scrutiny went into some very thoughtful detail about the implications of that. And for people who have not yet listened to that episode, I just wonder if you could put it in context in terms of the stakes here and why the President shouldn't be able to fire commissioners or heads of independent agencies without cause, willy nilly. And what the implications are for, I don't know, democracy and preventing this from becoming a full blown kleptocracy.
- [38:48]
Rebecca Slaughter
Sure.
- [38:50]
Melissa Murray
Can you give me a little room to cook? Because, like, I think this requires a wind up.
- [38:54]
Alex Wagner
I'm coming out of the kitchen.
- [38:55]
Melissa Murray
Okay, here we go. So, listeners, the Federal Trade Commission is what is known as a multi member agency. And it was actually created by Congress in 1914 for the purpose of protecting the public from deceptive, unfair business practices. It was part of this trust busting effort to prevent the consolidation of wealth in industries, because those kinds of consolidations often accrued with the consumer being on the short end of the stick. So this is very much a kind of consumer protective move to create the Federal Trade Commission. And in creating the ftc, the Congress specifically structured the agency so that it would be insulated from politics and operate independently. So it has five commissioners, and the commissioners are appointed by the President and they are confirmed by the Senate for seven year terms. But no more than three of the commissioners can come from a single political party. And Congress has made very clear in the statute that created the FTC that the President cannot remove a commissioner for any old reason. If the President wants to remove a commissioner of the ftc, he can only do so for cause. And those causes have been, quote, inefficiency, neglect of duty, or malfeasance in office. So a pretty limited set. And that pretty much mirrors the structure of a lot of these independent agencies, like the Federal Reserve, for example, the, the Federal Communications Commission, the Federal Elections Commissions, they're insulated from politics because people recognize that they are expert agencies and they have to operate independently, unconcerned about the political wins. Okay, so this gets into Rebecca Slaughter. Rebecca Slaughter was originally nominated by, wait for it, Donald Trump.
- [40:39]
Alex Wagner
What?
- [40:40]
Melissa Murray
What? Okay, I know it is a wild. It's a wild and wacky story. I'm not in his first term. Back in 2018, Donald Trump, liberal squish, nominated Rebecca Slaughter to serve as a commissioner of the Federal Trade Commission. The problem though, was that she did her job relatively well. She was independent. And when Joe Biden came in, he reappointed her to another term, and her new term is scheduled to end in 2029. So when the new second Trump administration comes in, they're looking around and apparently Rebecca Slaughter has too much of the taint of Biden on her.
- [41:19]
Alex Wagner
She has the stink of Biden on her. Therefore, she must go. She must go.
- [41:23]
Melissa Murray
She must go.
- [41:23]
Alex Wagner
And you should know, Melissa, she was at her daughter's rehearsal for Beauty and the Beast. Side note, her daughter was playing Belle and got the email that she was fired literally out of the blue. I mean, it wasn't unexpected, but there was no cause.
- [41:36]
Melissa Murray
Unceremoniously removed via email and ostensibly to create a vacancy that would flip free up a position on the FTC for a commissioner who is perhaps more aligned with this administration's trade priorities. So again, Slaughter has a really good case because the statute makes very clear the President can only get rid of you for cause, and there's no cause here. So she files a suit on the ground that the removal is unlawful and violates the separation of powers and specifically Congress's authority to set the terms under which these multi member agency commissioners can be removed. And she has some really good precedent on her side. So back in 1933, another president, Franklin Delano Roosevelt, also wanted to fire a commissioner of the fdc, one William Humphrey. And I see where you're going with this.
- [42:28]
Alex Wagner
I'm seeing where you're going with this.
- [42:29]
Melissa Murray
You're seeing your.
- [42:29]
Alex Wagner
The name of my new jam band is what Starry Decides.
- [42:34]
Melissa Murray
This Is for Suckers.
- [42:36]
Alex Wagner
What I was gonna say, my jamman's gonna be called Humphrey's Executor, which is like the new.
- [42:40]
Melissa Murray
Oh, that is a good jamman. Like Starry decided. Stisis is for Suckers is obviously the first single from your album, and I hope when you release it, you hit the lean that lets people know that it's going to be a great album. That Luther Vandross Lean. Exactly. Exactly.
- [42:55]
Rebecca Slaughter
Right.
- [42:56]
Melissa Murray
So she's got Humphrey's executor on her side. This is a 1935 precedent from the Supreme Court where the court basically upholds the Federal Trade Commission statute saying that the President cannot remove the commissioners for anything but cause. So inefficiency, neglect of duties, malfeasance. Not just because you don't like this commissioner or she has the stink of Biden about her. So that's where we are. The problem, of course, with precedent is that this court.
- [43:24]
Rebecca Slaughter
I know.
- [43:24]
Alex Wagner
Can we just stop. Can we pause on that? Because it's like there's so many reasons to be indignant about this, but like, yes, this court has cloaked itself in, you know, originalism, stare decisis, precedent, these, these theories, some of which were basically invented for political expedience a couple decades ago. But nonetheless, they see themselves and they've positioned themselves as the sort of arbiter of tradition and the keepers of tradition. And here the minute tradition is inconvenient for them, a case that is the same case that's a century old, they're like, yeah, fuck that. Or in the words of the great Dahlia Lithwick, the emperor is butt naked.
- [44:06]
Melissa Murray
The emperor being the court, the emperor is butt naked. They've had Humphrey's executor in their crosshairs for some time now. Back in 2020, they had another case called Sela Law vs. CFPB. This was a challenge to the structure of the Consumer Protection Bureau. And they essentially said that that particular structure was impermissible and it could be struck down. And they left open this broader question of whether Humphrey's executor would continue to stand and that Congress could structure these other multi member agencies. The CFPB was different because it was a single person headed agency, but that was what that made it different. Again, it's the logic isn't logicing, but whatever. Brett Kavanaugh's on this court, so it's fine. And they've already begun chipping away at it. So, you know, everyone knows that Humphrey's executor is in the crosshairs. And it's in the crosshairs for a number of reasons. So one, Humphrey's executor completely goes against this made up fan fiction theory called the Unitary Executive theory that has been cooked up in a meth lab of conservative grievance where they essentially say that all of the executive power that's available in the Constitution, so everything in the administrative state, everything in exec, in administrative agencies, all of that is vested in the President. And so the President gets to make all of those decisions, including deciding who gets to stay and who gets to leave. So it's a very sweeping theory, not really supported by constitutional texts. It's not explicit.
- [45:40]
Alex Wagner
It sounds like monarchy a little bit. I mean, I'm just. It does sound a lot like a monarchy. It sounds like, or like King Trump. I mean, I'm just like spitballing, you'll.
- [45:49]
Melissa Murray
Be back like before and we'll fight the fights we had before, I guess. I mean, it's very Hamiltonian in its way. Yes, we had a whole revolution about this, but this idea of a unit executive very much smacks of monarchy, but that hasn't made the conservative legal movement get off of it. It's very much on this theory because so much of its authority then gets vested in a president. And usually when the court is interested in really prosecuting the unitary executive theory to its utmost, it's when a Republican president.
- [46:25]
Alex Wagner
I was just gonna say it's like in their fan fiction, there's never ever again a Democratic president which they could make real, I suppose, and they're probably doing everything in their power to make real. But there will be a Democrat in the white. God damn it. There will be a Democrat in the White House again one day, maybe. Well, but does that. I mean, does that ever. Do you get a sense that that possibility ever strikes, you know, the frontal lobe for these conservative justices, the amount of power they are giving the President could one day be the amount of power they're giving a Democrat.
- [46:57]
Melissa Murray
Well, that came up repeatedly in oral arguments like, you know, just hold the phone a minute. This is for forever. Right. But I think they sort of understand in their own ways that they can sort of craft these little exceptions, make little distinctions, and essentially make this only for Republicans, certain kinds of presidents or presidents that they like, the presidents whose priorities align with theirs. So again, this unitary executive theory is one of the reasons why Humphrey's executor is in the crosshairs. The other reason is that the six Republican justices on this court have, I think, a quite deep seated antipathy to the whole prospect of administrative agencies. And this is, I think, perhaps most pronounced in Neil Gorsuch, who has made very clear in his time on the Court that he's really skeptical of the whole idea that the Constitution would even allow an administrative agency. This idea that Congress, through a statute, could create an agency and delegate some of its authority to do lawmaking to an agency that is operated by someone who is then appointed by the President and confirmed with the advice and consent of the Senate.
- [48:02]
Alex Wagner
Can I just interrupt for a minute? Just backstory, context.
- [48:04]
Melissa Murray
Neil Gorsuch's mother, Ann Burford Gorsuch or Anne Gorsuch Burford.
- [48:09]
Rebecca Slaughter
I always think.
- [48:09]
Alex Wagner
I think it's Anne Gorsuch Burford was the head of the EPA in the 1980s and got a rough ride from Congress.
- [48:16]
Rebecca Slaughter
She sure did.
- [48:17]
Alex Wagner
Her stewardship of the epa, which was forever imprinted on young Neil's mind as he went to Georgia.
- [48:23]
Melissa Murray
Everyone has an origin story.
- [48:24]
Rebecca Slaughter
They do.
- [48:24]
Alex Wagner
That's just context here. As they launch an attack on the deep state.
- [48:28]
Melissa Murray
Yeah, we all have mommy issues, daddy issues, and everyone has to pay for them. So here we are.
- [48:34]
Alex Wagner
Here we are, in any event.
- [48:36]
Melissa Murray
So, again, I think one of the theories that Neil Gorsuch and others have promoted about administrative agencies is that they are somehow not democratically accountable because the people are so far removed from these faceless bureaucrats. But that's not quite true either, because Congress creates the agency like they created the FTC to protect the consumer, the little guy. And Congress sets up the terms by which the agency is insulated, and the President, who is democratically accountable, gets to nominate someone and the Senate gets to consent to that appointment, and they're democratically accountable. So the math isn't mathing on this whole democratic theory with regard to administrative agencies. But they keep talking about it like, you know, there's no way that these people are accountable to the people themselves. But, you know, I think that's a harder argument to make.
- [49:27]
Alex Wagner
It's so crazy to say something. I mean, this is not the case that we're talking. But just in general, like, the Consumer Financial Protection Bureau is not accountable to the American public.
- [49:37]
Melissa Murray
It's nothing to do with the people fucking what?
- [49:39]
Alex Wagner
Like, what are you talking about? So instead, you unwind the power of these effectively independent agencies that are playing a very important role in oversight. They become populated with stooges of the administration. This particular administration has proven itself open for business as far as billionaires, cryptocurrency, and Saudi oil money. They'll take whatever.
- [50:01]
Melissa Murray
Let's talk about that for a minute. So, I mean, I think the stakes of Trump vs. Slaughter are enormous for the administrative state in general. There's also a case regarding Lisa Cook. She's the governor of the Federal Reserve that the President has tried to remove as well. The court thus far has prevented her removal. That wasn't the case with Rebecca Slaughter. The court allowed President Trump to remove her in an interim emergency order while her lawsuit was pending. So she's been out for a while. But Lisa Cook, because the Fed is different, and apparently all of the justices have investment accounts.
- [50:38]
Alex Wagner
They have money.
- [50:39]
Melissa Murray
Funny how that is funny money. She's still in her position, but there is a case that is percolating and will be making its way up to the court about whether or not the Fed is also an independent, an entity that could be subject to these removal, these broad removal powers that the administration is asserting. So I just want to make clear what the stakes are. This has real implications for every administrative agency that has someone who is appointed and could be removed by the President. Or multiple people who could be removed by the President. But it also, I think at a more granular level, has real implications for this particular agency. Right. So as I said, the Federal Trade Commission was set up as a kind of trust busting effort to protect consumers from consolidations of wealth in various industries. And that's what the FTC does. In the Biden administration, the FTC brought a lawsuit against Amazon because Amazon was basically pitching consumers on this Amazon prime and making it really hard for them to unsubscribe from Amazon Prime. There was like an 11 step process to unsubscribe.
- [51:47]
Alex Wagner
Why would you ever want to do that, Melissa? Why would you ever.
- [51:50]
Melissa Murray
Why you?
- [51:50]
Alex Wagner
I mean, we're making a decision for us. We all need to be prime members. We need expedited delivery. And the machine, machines or the underpaid workers will get us our goods yesterday.
- [52:00]
Melissa Murray
And you can never get out of it. Like, it's literally a relationship that will last forever, like a marriage.
- [52:05]
Alex Wagner
Hotel California. It's Hotel California.
- [52:07]
Melissa Murray
So the Biden administration's FTC sued Amazon and that litigation was expected to result in a Serious penalty for Amazon.com the Trump administration's FTC comes in in January 2025. All of a sudden there is a huge settlement that's brokered. The settlement is for $2 billion. So it's not chump change, but it's also not what you might have gotten had the litigation actually played out.
- [52:35]
Alex Wagner
So this January of 2025, what was happening then?
- [52:39]
Melissa Murray
Well, in general, I just want to pause for a minute. Like this is a very advantageous development for Amazon.com because, you know, they get out of this major lawsuit, they do pay a pretty hefty penalty, $2 billion, but not what they likely would have been liable for if the litigation had gone, you know, had played itself out. But it's worth noting that on January 20, 2025, as the President was being sworn in, behind him was Jeff Bezos. No, the CEO of Amazon, the founder.
- [53:10]
Alex Wagner
You're connecting that.
- [53:11]
Melissa Murray
Indeed, many of the oligarchs who were flanking the President at the inauguration, Rebecca Slaughter, in remarks she made at the University of Pennsylvania, noted that the FTC was in litigation with almost all of those companies. So, I mean, those are the kind of granular stakes. Like those are all people sitting on that dais who would clearly benefit from an FTC that was more corporate friendly, was more aligned with a particular ethos about consumer protection. And that's essentially what Rebecca Slaughter's removal is engendering.
- [53:45]
Alex Wagner
More of my conversation with Melissa Murray in just a second. But first, if you enjoyed our conversation, check out Melissa's podcast, Strict Scrutiny. Each week, Melissa and her co hosts break down the court decisions and legal fights that actually shape how this country is run. This week they are digging into the slaughter case at the Supreme Court, which you heard about earlier in our episode. They're also getting into other legal battles tied to power, accountability, and just who gets to make the rules. Listen to Strict Scrutiny wherever you get your podcasts or watch on YouTube. This episode is sponsored by Cards Against Humanity, the company that brought land on the US Mexico border to stop Trump's wall and sued elon Musk for $15 million for trespassing on that land, used profits from red states to fund abortion access, and paid people to give a shit about the 2024 election. Cards against Humanity is one of the only companies stupid enough to stand up to Donald Trump. They don't profit from their political stunts, so if you want them to be able to afford a good lawyer and oh, we do consider buying one of their new games like Cards Against Humanity Tales, a book of fill in the blank stories for horrible people, or Shit List, a new way to play the game where you write the answers or party Mouth a new party game about shouting obscenities as a coping mechanism for the hellscape we all live in. You listen to crooked media, so you're probably smart enough to figure out how to buy their stuff. Anyway, Cards Against Humanity apologizes for interrupting your podcast with their bullshit.
- [55:24]
Laci Mosley
What's poppin listeners? I'm Lacey Mosley, host of the podcast Scam Goddess, the show that's an ode to fraud and all those who practice it. Each week I talk with very special guests about the scammiest scammers of all time. Wanna know about the fake errors? We got em. What about a career con man? We've got them too. Guys that will wine and dine you and then steal all your coins. Oh, you know they are represented cause representation matters. I'm joined by guests like Nicole Byer, Iraq Madison iii, Conan o' Brien and more. Join the congregation and listen to Scam Goddess wherever you get your podcasts.
- [56:05]
Alex Wagner
I just we also talked to Rick Waldenberg, who's the plaintiff in the case Learning Resources Inc. V. Trump. That's one of two cases the court's hearing on tariffs. A tariff case is a landmark case potentially for this administration and the scuttlebutt, which I'm not really privy to, but the scuttlebutt that I have heard through the Grapevine, which is to say the Internet is that they stand a chance of winning this one. That it could be a real fuck you to Trump and his attempt to, I don't know, spin the American economy into a vortex of hell. And I wonder if you agree with that assessment and why the judges might like the plaintiffs in this case better than in, let's say, slaughter. I mean, we don't have to unpack slaughter because I think we know what their motivations are. But. But Rick was very explicit about this in our conversation. He doesn't think of this as a political case. He thinks of this as a legal case, which I think is probably what every plaintiff says. But talk to me about whether you think this could be an L for Trump.
- [57:04]
Melissa Murray
I do think it's going to be an L for Trump, but not for the reasons that Rick is suggesting. I think Rick is an utterly sympathetic plaintiff. If you campaign on the economy and making things better for small businesses like the American Dream, Learning Resources, Inc. Is an ideal plaintiff. And you are clearly on the wrong side of history. These reciprocal or trafficking tariffs that the President has lofted have really decimated small businesses, made it much harder for them to operate. It's completely inconsistent with the whole messaging behind maga. It might be consistent with the America first messaging in that the President is arguing that these trade deficits have really stuck it to American workers and these other countries have to pay. The problem, of course, is that there's no statutory authority for the President to do this. So he claims that the International Emergency Economic Powers act, or iepa, gives him the authority to issue these tariffs. But the problem is IPA is about emergencies. There has to actually be an emergency before the President is authorized to do something like level these tariffs. And, you know, it's an open question, and I think one that's very easily answered, is the ordinary cyclical trade deficit issue. Is that an emergency? It happens all the time. Like, these are cyclical. Like, they're not emergencies. It's just kind of what happens year over year. Like, they ebb, they flow, they come back, like, whatever. That's how trade deficits typically have worked. Not everything is an emergency, but the President is treating a lot of things as an emergency in order to act. So, one, this case is about tariffs, but it's also broadly about how the President uses emergency authority to take power and to prosecute his interests in a lot of different places, not just in the economy. But we've seen this with the National Guard and elsewhere, so that's important to note. But I think the real winner here, and it seemed obvious from the oral arguments in November that the administration is likely to lose on this because this, you know, these justices can read, and the statute makes it very hard to make the case that this is an emergency for which the President is authorized to act. But I think the real winner here is not necessarily Rick, although Rick will certainly benefit from this. The real winner here is the Supreme Court. And the reason the court is the winner is that it's been putting up a lot of numbers for this administration, and it's been catching a lot of flack for it because people get it. Like when you are letting the administration dismantle the Department of Education while the litigation progresses, that's not how the court typically operates. Usually when the court issues an administrative stay, it's to maintain the status quo. But here, you know, the status quo was we had a Department of Education, and the court just allowed him to get rid of it.
- [59:57]
Alex Wagner
Chill, chill, chill. We're going to destroy this thing, and then, like, when we figure it out.
- [60:01]
Melissa Murray
And then we come back and we'll really. Yeah, we're not going to destroy it yet or. Yeah, yeah, yeah, exactly. So, I mean, they've been catching a lot of heat, and rightfully so. This case gives them an opportunity to, one, save this president from himself. Like, these tariffs are enormously unpopular. They're also a major hit to the economy. So if you get rid of them right before the midterms, you can jook the economy a little. I think there'll be a little uptick after the tariffs fall. And. And I don't know if these are the world's greatest micro or macro economists, but I think they get how this works. There will be an uptick, and that will, I think, benefit the president, the party in power, and more importantly, it makes this court look like there are circumstances where they are not necessarily capitulating to this president, that they are standing up to him, they are being independent. So it solves a lot of problem. It saves this president from his worst impulses, saves the country and their pocketbooks from his worst impulses, and it saves this court from looking like the lapdog of this administration.
- [61:07]
Alex Wagner
God. I do have to ask on that note, because we know they're taking up the issue of birthright citizenship, which we thought was pretty explicitly outlined in the constitutional amendments.
- [61:16]
Melissa Murray
This is another one where I think. Yeah, yeah.
- [61:18]
Alex Wagner
You know.
- [61:19]
Melissa Murray
Yeah, this is another one where I think it's pretty straightforward.
- [61:22]
Alex Wagner
What. Just to be clear, there are two that are gonna be on the Docket in the New Year. They haven't been argued yet. That's Barbara v. Trump and Trump v. Washing. Yeah, if you were born on US soil after the year 1848, you were a US citizen. So is the court just taking this up so that they can give Trump an L and sort of like, help him save face, slash, create an absolute fucking citizenship crisis here in the United States?
- [61:46]
Melissa Murray
So I don't know if it's entirely that craven. So we know that on his first day of office, the President issued an executive order rescinding birthright citizenship. And to be clear about what that means, he issued an executive order effectively overruling the citizenship clause of the 14th amendment. So section one of the 14th amendment reads, quote, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and the state wherein they reside. And it's pretty straightforward. If you can read, you know what this means. And for the longest time, certainly since 1868, when the 14th Amendment was ratified, people have taken this to mean if you are born here in the United States, regardless of your parents status, you're a citizen. There are a couple of exceptions. If you're born to a diplomat who's actually here under the auspices of another country, then you're not a citizen because your parents are literally under the color of another foreign power. But in this particular circumstance, if you're here, whether your parents are undocumented, whether they're here on temporary student visas, you are a citizen because you were born on US Soil. According to the administration, that's not what the drafters of the 14th Amendment were doing. They were only trying to make the children of formerly enslaved persons citizens. So they're basically only focused on the formerly enslaved and therefore the children of undocumented persons, the children of those who are on temporary statuses, these are not individuals who are eligible for birthright citizenship under Section 1. The court had to take up this case because there have been so many challenges to this executive order. We already saw one challenge make its way through the lower courts and get up to the Supreme Court. The Court didn't actually take up the substantive question of whether the President's interpretation of Section 1 of the 14th Amendment was a valid one. Instead, they decided this procedural question about whether federal district courts could issue nationwide injunctions that stop the administration across the country from doing something. They narrowed the scope of nationwide injunctions, but they left open the substantive question, what does Section 1 of the 14th Amendment mean? So they had to come back to it. At some point, because this executive order is still out there and there's still a lot of questions about whether babies born to undocumented persons or people getting, you know, degrees here in the United States and studying are actually citizens. So that's why this case is being heard. But I think you're exactly right and your instincts are exactly right. If this court can read, they will make clear that the 14th Amendment reads what it says and they will invalidate this EO and they will look like heroes. Everyone, all the major news, all the major news networks will say, you know, the Supreme Court saves birthright citizenship. Like, I think that goes too far. I think all of the headlines should be the Supreme Court can read because that's all this is, because it's so straightforward and making these six people look like heroes for voting the way, don't do it, people. Don't do it. Don't do it.
- [64:56]
Alex Wagner
I do think it's apropos to talk about Reconstruction, because what this court is trying to do, first of all, just to be clear, the conservative project for decades has been unwinding civil rights progress. And from the 1960s and 70s, I do have a forthcoming book about the Reagan years and how it was the period of, like, shadow retrenchment to figure out how to radicalize the courts and make them partisan vehicles. And, man, was it a successful project or what? Anyway, I digress. Unwinding the civil and social progress of the 60s and 70s has been the sort of, you know, the organizing principle for several of the justices who are on the Supreme Court who came of age in the 80s. And John Roberts was one of them. Right, the Voting Rights Act.
- [65:42]
Melissa Murray
Sam Alito was one of them.
- [65:44]
Alex Wagner
Exactly. Clarence Thomas over at the eeoc.
- [65:47]
Rebecca Slaughter
Yeah.
- [65:49]
Alex Wagner
The dismantling of the Voting Rights act has been, you know, the. What do we call it? The golden chalice for conservatives. And the Court is now taking up a case that is likely to dismantle Section 2 of the Voting Rights act and sort of render it moot effectively. And I'm using legal terms, but I have no idea what the fuck I'm doing and what it represents. I will just quote the Guardian. This case is part of a broad effort to not only reinterpret Reconstruction era amendments, the constitutional amendments passed after the Civil War, to ensure equal rights and due process, but also to weaponize them against democracy and civil rights. Its roots go back more than a century to the aftermath of the Civil War. Like, let us be clear about the project at hand when we talk about Louisiana vs Calais which is the VRA case that the Supreme Court has taken up, which has a sort of tortured history even in the recent past with this particular Supreme Court court. Can you talk about that a little bit, Melissa?
- [66:44]
Melissa Murray
Oh, I want to co sign exactly what you said. Like this court has really been on one about the Reconstruction Amendments, which is to say that they have been. They've taken a very dim view about what the Reconstruction Amendments were meant to do and how they were supposed to work. And instead we actually see the Reconstruction Amendments being weaponized against the actual goals of Reconstruction. We saw this in Students for Fair Admissions versus Harvard. That was the affirmative action case from a couple of years ago where the Court said, hey, guess what? You know, that whole equal protection clause, it means you can never, ever, ever, ever, ever think of race in any, any context. Like you cannot do that. Like that is the actual definition of race discrimination. When these affirmative action programs were literally meant to remedy years in which people could not be admitted to institutions of higher education because they were either a enslaved or Jim Crow prevented them from doing so, or just generally they were kept out because of quotas, whatnot. So that is a weaponization of that language against the very people who were intended to benefit from that. And you're seeing the same kind of impulse in Louisiana vs. Kelly. Louisiana vs. Kelly concerns section two of the voting Rights Act. The Voting Rights act was enacted in 1965. It is landmark legislation meant to make good on the promises of the 14th Amendment Equal Protection Clause and the 15th Amendment, which provided the franchise to Africa. African American men. Also in the 19th Amendment from 1920s, women got to vote too. Black women really didn't get to vote until the 1960s with the advent of the Voting Rights act, this Court has already hobbled the Voting Rights act to a nub. So in 2013, in Shelby county versus Holder, the chief justice wrote a 5 to 4 opinion in which they invalidated the pre clearance coverage formula of the Voting Rights Act. That was a regime that required states with a history of voter suppression laws to first pre clear any changes that they made to their voting procedures or electoral procedures with the Department of Justice or three judge court. The Court invalidated that.
- [68:49]
Alex Wagner
So basically, well, because there was no racism back then.
- [68:52]
Melissa Murray
Well, they were saying like everything had changed. There was a racial progress narrative. Obama was president, there was a black president, Eric Holder was the Attorney General.
- [68:58]
Alex Wagner
No more racism.
- [68:59]
Melissa Murray
And so, I mean, they tell this sort of story of rosy progress. And you know, Justice Ginsburg, I think in one of the most epic lines ever, is like yes, there's been racial progress. Why? Because the preclearance formula exists, and throwing it out now is like throwing out your umbrella in a rainstorm because you're not getting wet like morons.
- [69:17]
Alex Wagner
I don't need my antidepressants. I'm fine now.
- [69:20]
Melissa Murray
Like, I feel great. Exactly. So that was the first thing. And when John Roberts was dismantling the pre clearance formula, he kept saying, oh, there are lots of ways to challenge unlawful voter suppression laws, like Section 2 of the Voting Rights Act. You still have that? Yeah. It took them, like, five minutes before they got on how to start chipping away at the Section 2 of the Voting Rights Act. And they started in a case called Brnovich vs DNC, where they made it a lot harder to bring Section two challenges. Louisiana versus Kelly is yet another attempt to chip away at Section two. So Section two allows you to sue in circumstances where a state has violated or done something to dilute the power of the vote for certain groups or to limit the access to the ballot for certain groups. In Louisiana, and as in other places, they've allowed for what are known as majority minority coalition districts. So when they draw the congressional maps, the state legislature draws the maps, they can carve up the state in lots of different ways. And often, many states do things like they gerrymander. They try to consolidate partisan power in certain places. The Supreme Court has said that it's totally fine for them to do it, and federal courts have nothing to say about it. If you want to challenge it, you have to go to a state court. You have to figure that out. But you can't do it on the basis of race. You can't do racial gerrymandering. The problem, of course, is that in states in the south, the question of partisan affiliation and race often go very closely together. They're hand in hand. So what looks like a racial gerrymander could also be recharacterized as a partisan gerrymander. And so when Louisiana drew up its maps, it created a single district, single majority minority district. It was challenged by black voters who argued that the state's black population could actually support two majority minority districts where blacks and other minority groups could come together to elect a candidate of their choice, optimize their opportunities to elect a candidate of their choice, and two districts could be drawn based on the population of the state. And where people were dispersed in the state. They made a new map with two majority minority districts. And then that map was challenged on the ground that in drawing the new map with the two districts, the state had thought about race and that was an impermissible racial gerrymander. Again, I'm going to start off with the first map that was unfair and only made one district. They argued that, but we were only doing that on a partisan basis.
- [72:05]
Alex Wagner
That's not about race, that's just about Republicans. And to be fair, never mind that most of the Republicans are white.
- [72:11]
Melissa Murray
Well, and to be fair, in this new map, the second map that was drawn, it's being challenged as a racial gerrymander. The state says that when they drew it, they were just trying to, they were actually doing things that, that advantaged the Republican party. Like you know, they drew the map in such a way that Mike Johnson seat in Congress was preserved. So there is again this effort to weaponize the Reconstruction amendments to say like anytime you're thinking about race, you're doing it wrong. You're being racist, you're being racist. When in fact these were race conscious amendments intended to help formerly enslaved come into the body politics. And they recognize, and the legislation that was enacted to enforce those provisions also recognized that even 100 years later we were not making good on the promises of Reconstruction. And that's why we needed the Voting Rights Act. So I mean, it all seems a little too cute by half. You know, anytime you think about race, it's, you know, you've discriminated against white voters when in fact these, these African American voters, a state like Louisiana, which has an enormous African American population, a state like Alabama with an enormous African American population, they're just trying to optimize the opportunities to elect someone who might be able to represent their interests.
- [73:28]
Alex Wagner
I'd like to ask you sort of a big picture question here, which is the thing, I think that illustrated for a lot of Americans the corruption of this court was the flying of insurrectionist flags over people's beach homes. Sam Alito, the right wing rum springers funded by conservative fat cats. I'm seeing you Clarence Thomas on that. And there was a moment where it was like, okay, we see in their rulings how corrupted these justices are, how absolutely partisan they are. The ideological inconsistency of their rulings which can only be explained away by a partisan agenda and also their own personal history. And now the public can really just see in practical terms the way in which they've been co opted by the hard right. And then all of that went away. And then like we stopped talking about all of it. There were no sort of like there were no reforms made to the court. Yeah, I wonder, first of all, do you think that period of scrutiny on the court actually further radicalized some of the conservative justices and confirmed that, oh, I. The liberal media and the liberal firmament that has its tentacles in all kinds of federal government, aspects of the federal government, we must stop it. I mean, I wonder what you think the net effect of that is was, and whether any kind of reforms are ever possible.
- [74:55]
Melissa Murray
So let me take this in a couple of different places and different layers. You asked a big question. Was it worth it to really focus on the court in that moment? Yes, I think it was.
- [75:06]
Alex Wagner
I think it was worth it. I just am wondering whether or not we think there is a backlash to it.
- [75:13]
Melissa Murray
I think certainly there may well be a backlash, and I'll get to that. But I will say it obviously matters that this happened. And to be clear, I don't think it's over on strict scrutiny. The scrutiny continues strictly every single week. So we are on this hustle. We are watching this court. We are calling out the BS Whenever we see it. Justice Jackson is calling out the BS when she sees it. Justice Kagan calls out the bs Justice Sotomayor calls out the BS like the cries are coming from inside the house. So. And it's actually accelerating. And I think it's been accelerating with this particular administration. And so I don't think it's diminishing. I actually think it's getting worse. I just think there's so much going on that it's hard to focus on the court when we're literally watching a monarch autocrat take shape. So that might be part of the problem. It seems like the attention on the court is diminished, but that's because there's just so much other stuff. It's literally like being at a zoo where chimpanzees are flinging feces at each other. Right.
- [76:18]
Alex Wagner
I mean, and at us.
- [76:19]
Melissa Murray
Right. It's like, where do you look first? Where do you duck first? And so I just want to say that I think people still get that there's something not right about what the court is doing. There's something deeply partisan, and that this court is captured. And I think people understand that. I think the justices also recognize that they are being criticized and are a little sensitive to it. I mean, you know, Amy Coney Barrett wrote a book this year, went out on a book tour, and was at great pains to spin, like, completely fanciful justifications for what they were doing. And I have to say, like. Like, if this is the explanation, girl, this ain't it. I mean, at one point, she was saying, you know, like, Sometimes on the shadow docket, we just don't really know what we're trying to do. And, you know, so we sort of like, we leave things vague because we're not even really sure. I'm like, that's not a great answer. Not a great answer for when you're dismantling the Department of Education. I wasn't sure exactly what constitutional provision fit here, so I made it as vague as possible. And I'll get back to you.
- [77:22]
Alex Wagner
Cool.
- [77:22]
Rebecca Slaughter
Cool.
- [77:24]
Alex Wagner
Right.
- [77:24]
Melissa Murray
So they clearly know that they have to explain themselves and that people are watching and that there have never been more eyes on the court than they are now. And I think the court is not immune from what happens outside of 1 First street or what's happening in the world at large. So the tariff oral arguments took place right after the Democrats ran the table in that sort of amazing midterm election. And based on the tenor of that oral argument, I think it would be hard to say that the court wasn't sort of picking up, like, there's a lot of real anger, antipathy around what the administration is doing. Shock that this is what people are getting when all they wanted was for eggs to be less expensive. And now the nanny is in Honduras. Like what? Like, you know, people are being sent to seekot. Like, that's not what they signed up for. And I think the court is, you know, beginning to get hip to that or I mean, it certainly seemed that way in the oral argument. And we focus on the Supreme Court. There are other courts here. There are the lower federal courts, and they are doing the damn thing they.
- [78:36]
Alex Wagner
Are doing the single day. Shout out to the rest of the federal judiciary, not all of them.
- [78:41]
Melissa Murray
The 5th Circuit still continues to be.
- [78:43]
Alex Wagner
But. But you're right, and we do shout out the lower courts when we can, but the cravenness, the corruption, the collusion, only words that begin with C of the Supreme Court should not be ignored. This is why we have brilliant minds like you, Melissa Murray, to help us unpack the specifics and the ramifications. Melissa, thank you for taking time out of your, I'm sure, very busy holiday season to close out the year with us in spectacular and depressing fashion.
- [79:13]
Melissa Murray
So we do on Strict Scrutiny podcast.
- [79:15]
Alex Wagner
About this is what I meant about like in these dark, dark times. I do want to hear from you. Not because you make it darker, but because you give me the light of knowledge.
- [79:25]
Melissa Murray
Well, we love Runaway country on Strict scrutiny. We can't wait to have you on the show.
- [79:30]
Alex Wagner
Alex, I know nothing about it.
- [79:31]
Melissa Murray
To interview you about your book. We're so glad you're at Crooked.
- [79:35]
Alex Wagner
I'm so glad to be at Crooked. I'm so thrilled that I get to see you over a Zoom Riverside recording connection with our respective podcasting mics. This is the way it was meant to be, girl.
- [79:47]
Melissa Murray
Obviously. Obviously. Let's thank Brett and Clarence for making this possible. Cheers fella. Respect.
- [79:53]
Alex Wagner
Thank you for your time, sister. I will see you in the new year. One last note before we go. Runaway country is gonna be dark next week and the following for the winter holidays when we will be tucked in a little rabbit hole drinking eggnog all day. We will be back with more great episodes in 2026, so in the meantime, don't forget to check out amazing rapid response videos on our YouTube channel Runaway country with Alex Wagner. Thank you for listening and also thank you for a great year, even if it was kind of miserable. Runaway country is a Crooked Media production. Our senior producer is Ilona Minkovski. Our producer is Emma Illich Frank. Production support from Megan Larson and Lacey Roberts. The show is mixed and edited by Charlotte Landis. Ben Hethcote is our video producer and Matt De Groat is our head of production. Audio support comes from Kyle Seglin. Our theme music is by Breakmaster Cylinder. Adrienne Hill is our head of news and politics. Katie Long is our executive producer of development. Our production staff is proudly unionized with the Writers Guild of America EAS.
- [81:23]
Laci Mosley
What's poppin listeners? I'm Lacy Mosley, host of the podcast Scam Goddess. The show that's an ode to fraud and all those who practice it. Each week I talk with very special guests about the scammiest scammers of all time. Wanna know about the fake era? We got em. What about a career con man? We've got them too. Guys that will wine and dine you and then steal all your coins. Oh, you know they are represented because representation matters. I'm joined by guests like Nicole Byer, Ira Madison iii, Conan o' Brien and more. Join the congregation and listen to Scam Goddess wherever you get your podcasts.
- [82:00]
Alex Wagner
Did you know 39% of teen drivers.
- [82:02]
Rebecca Slaughter
Admit to texting while driving?
- [82:03]
Melissa Murray
Even scarier, those who text are more likely to speed and run red lights.
- [82:07]
Rebecca Slaughter
Shockingly, 94% know it's dangerous, but do it anyway.
- [82:10]
Melissa Murray
As a parent, you can't always be in the car, but you can stay connected to their safety with greenlight. Infinity's driving reports monitor their driving habits, see if they're using their phone, speeding and more. These reports provide real data for meaningful conversations about safety.
- [82:22]
Alex Wagner
Plus, with weekly updates, you can track.
- [82:24]
Melissa Murray
Their progress over time. Help keep your teens safe. Sign up for Greenlight infinity@Greenlight.com podcast.