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Leah kicks off the episode with repeat guest Rebecca Ingber of Cardozo Law to discuss the wild illegality–both domestic and international–of Trump’s regime change operation in Venezuela. Then, Kate, Melissa, and Leah welcome Princeton professor and expert on the rise of modern autocracies, Kim Lane Scheppele to break down how Trump is consolidating power over the executive branch and the courts. Leah next catches up with president and CEO of Democracy Forward Skye Perryman on some of the legal developments over the holidays, including challenges to Department of Education funding cuts, the freezing of childcare payments to Minnesota, and a near-total abortion ban for veterans. Finally, the hosts speak with Demand Justice’s Josh Orton about the worrying trends his organization is seeing among Trump 2.0’s judicial nominees.

Kim’s favorite things: An “Almost Sacred Responsibility”: The Rule of Law in Times of Peril, Gerald J. Postema (Judicature); Judge Harvey Wilkinson’s opinion in Abrego Garcia v. Noem; Judge William G. Young’s opinion in AAUP vs. Rubio; Sara L. Ellis’s opinion in Chicago Headline Club v. Noem; The Dual State, Ernst Fraenkel; The Origins of Totalitarianism, Hannah Arendt 

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TRANSCRIPT

Leah Litman [AD]

Leah Litman Hi all, Leah here. We have a great episode in store for you featuring a conversation with an expert, the expert on how autocrats use law in courts to turn democracies into autocracies, an update about all of the legal grinch moves the administration tried to pull over the holiday season, and a conversation about Trump’s judicial nominees in the second term. But before we get there, we all woke up Saturday morning to learn that the FIFA Peace Prize recipient himself. President Donald J. Trump, the Dove, had launched a military invasion of Venezuela and kidnapped its president, Nicolas Maduro, and his wife, Celia Flores, who the attorney general subsequently told us are being charged with crimes in the United States. We knew you all would want to learn about this, so we are incredibly thankful that Rebecca “Beck” Ingber, professor of law at Cardozo and former counselor on international law at the State Department, has once again agreed to get us all up to speed. Beck, welcome to the show again, and thank you so much.

Rebecca Ingber Thanks so much for having me.

Leah Litman So let’s get down to business, the business of illegal wars and regime change. So what happened that we know of?

Rebecca Ingber So I had the good fortune of being jet lagged and woke up at 4.30 a.m. And I made the mistake of checking my phone, which you should never do, and someone had sent me a truth social post from the president claiming that he had carried out airstrikes against Venezuela and its leader, President Maduro. And that’s a direct quote and that’s important, so we’ll talk about that. So he claimed that the U.S. Government had captured Maduro and his wife, flown them out of the country. And we later learned their destination is the United States. It’s apparently New York. And so I of course hopped on the news and there have been many reports confirming explosions in Caracas and neighboring areas. And the attorney general, Pam Bondi has now announced an indictment. A new indictment in the STNY, the Southern District of New York, and she says that Maduro has been charged with narcoterrorism conspiracy, cocaine importation conspiracy, possession of machine guns. That one threw me a little bit because he is, of course, at least a de facto head of state, conspiracy to possess machine guns and destructive devices against the United States.

Leah Litman So do we know anything about the purported legal authority for this strike and again by strike I’m just using that as a shorthand for kidnapping a foreign leader and his wife at gunpoint and via bombings as part of what the president himself called a large-scale strike.

Rebecca Ingber There’s no legal authority for the strike. It’s a violation of both international law and domestic constitutional separation of powers. But we know a little bit about what the administration is claiming thus far. So the most detailed statement I’ve seen on the administration’s legal position came from Senator Mike Lee, who had apparently just gotten off the phone with Secretary of State Mark Rubio, who’s also dual headed as the national security advisor, which might be handy when you are trying to. And impose your pet projects on the government. And Senator Lee said, well, there’s nothing to worry about here legally. This was simply a law enforcement operation to execute a warrant. It likely falls, he said, within the president’s inherent Article II authority. And that’s a pretty big claim itself. He’s claiming that the president can invade a country, kidnap their leader, and the DOD could just bomb its way in as a means of protecting the people who are doing that.

Leah Litman So yeah, where to start? Just want to note that Democrats confirmed Marco Rubio unanimously. Also, how much the goalposts have changed. Because I think Mike Lee later said, this is just going to be in and out. But as we’ll get to by the end, it turns out it’s not going to in and. And there’s both, I think, an international law question and a United States law question. I guess, which do you want to start with?

Rebecca Ingber International law, and it’s pretty direct. So the UN Charter prohibits the use of force as a tool of policy. And this is, in my view, the backbone of the entire modern rules-based international order between states. So, the use a force is prohibited under the UN charter with the narrowest of exceptions. The state has a UN Security Council resolution, which an armed attack. And this rule is really what separates, in my view, the modern world from what came before, where states could use war as a tool of policy. So in this case, there’s no UNSCR, there’s not UN Security Council resolution. Venezuela committed no armed attack against the United States. There’s not an imminent armed attack. There’s no basis for self-defense. Now, it is possible that the US government, if it’s inclined at all to make an international law claim, might try to argue, well, would argue, it has stated that Maduro is not the legitimate leader and might try to therefore manufacture a claim of consent from some government they choose to recognize instead. And recognition itself is a political act. The state can. Recognize.

Leah Litman Are they just going to recognize some poster in Venezuela who announces that like they’re the government?

Rebecca Ingber Right, it can’t be used, you know, whether or not the state can recognize anyone, right? It certainly can’t used as a loophole to undermine the prohibition on the use of force or other international rules. That would just be an exception that would swallow the entire rule. So that’s international law.

Leah Litman So that’s international law. And I guess I just want to underscore, because we will talk about how there’s no congressional authorization and whatnot for the strike. But what you are saying is, even if there was, that wouldn’t make it legal, right?

Rebecca Ingber Absolutely. Absolutely. Congress can’t cure an act of aggression by the United States. And in fact, you know, Putin had a domestic legal authority voted on, right, to invade Ukraine, and that did not make it legal as a matter of international law.

Leah Litman So I guess now shifting a little bit to what might be both somewhat international and US law, and that’s something you were alluding to, which is about this claim that it was done in self-defense and in particular in defense of personnel. What is the law on self-defense, defense of service members? My hunch, not being an international lawyer or an expert on the law of war, is this cannot possibly remotely satisfy it given They created the condition needing the self-defense, but maybe I am missing something.

Rebecca Ingber So self-defense comes up in a lot of ways. And I just talked about sort of a macro way, right? The state can use force in these limited exceptions. And one of them is self-defense of the state when the state has been subject to an armed attack. And as a matter of domestic law, Congress has the power to declare war. The constitution gives that power to Congress, but it’s fairly well settled that if the country were actually under attack, the president can use forced immediately to repel attacks on the country. None of that’s relevant to your question. Those are the macro self-defense questions. There’s then this more complicated possible theory that in that same tweet I mentioned from Senator Lee, he might be suggesting, he says the president’s acting within inherent authority, meaning Article II constitutional authority, to protect US personnel from actual or imminent attack. Now that’s kind of a muddling of international and domestic law. The actual or immanent language sort of speaks in international law, but it sounds like. He’s talking about a U.S. Government claim to be able to act in self-defense to protect, for example, U. S. Personnel, right? And the U.s. Has long claimed the authority to protect for example U. S. Soldiers who are lawfully stationed abroad. If they come under attack, they may respond immediately in contact, right. In this case, that is an absurd fit. Right. I said lawfully station to broad. First of all, right? The state cannot. Engaged in an armed attack on another country and then backfill a legal defense to that armed attack by claiming that they were merely using force to protect the forces that were invading the other country. Right. This is, this is just a circular reasoning and it’s, and it subservient on its face.

Leah Litman Um, so speaking of absurdity, I do want to maybe say one or two more things about, you know, U S law because the Trump administration is claiming, you know, this was done to execute a warrant for Maduro and Flores’s arrest, you know, just by way of a little perspective, U.S. Courts issue warrants all the time. You know, I am not aware that incidental to those warrants, the police can bomb your neighborhood and kill people, um, you know, excessive force and police violence is a problem in this country and yet there’s question. This is just a ridiculous perversion of the principle that officers can do what’s necessary to execute a warrant. And JD Vance, like knower of all things, weighed in on X with a post that began, quote, PSA for everyone saying this was illegal, which I am pretty sure is like something a drunken college sophomore would say before dropping, trow, and peeing in public. But I digress. Vance then said, quote, Maduro has multiple indictments in the United States and that you can’t avoid justice because you live in another country. I went to law school. I know JD went to Yale. I learned about a concept called jurisdiction, and it refers to the idea that court’s authority is limited over persons and topics. Like, is that possibly relevant here?

Rebecca Ingber Yeah. So there’s a lot going on here. And what he seems to be suggesting is that somehow because there’s an indictment out for an individual, we can therefore invade a foreign country. That’s clear. There’s clearly no basis for that whatsoever. Um, but there is something else going on, which is that, uh, you know, which has the jurisdictional question for the courts to actually engage in and, and try this case. Can I stop you for one second? I just want to underscore.

Leah Litman Underscore like the first point you said, which is just because there’s a warrant, like it doesn’t mean we can just invade a foreign country. Like if Joe Biden issued a warrant to arrest someone, I’m pretty sure the Supreme Court then wouldn’t have said you have the authority to cancel student debt relief, right? Like the president needs authority, right, to do the things he is doing. Anyways, sorry, you were about to explain how courts were going to assess jurisdiction.

Rebecca Ingber So that’s exactly right, and my guess is the courts won’t even address the use of force question at all. And that’s because the government may well separately have evidence of criminal activity. And that criminal activity may have had effects in the United States. And that may well be enough for the courts to exercise jurisdiction. For example, if he had been traveling through the United States, putting immunity issues aside, which we’ll get to, there would have not been a problem with jurisdiction. And this raises a really interesting question. What about the fact that he was brought here illegally? The courts care about this. And it turns out that for jurisdictional purposes and this is just talking about this indictment in the SDNY. Under Supreme Court precedent, the courts aren’t necessarily going to look behind how a court ended up in their jurisdiction. Lawfully, unlawfully, not their business, says the Supreme Court, you’re here now. That’s what matters. Now, there is this immunity issue. Maduro is surely going to claim head of state immunity to suit in a foreign court. My best guess there is that the Supreme Court will also decide that the president has absolute authority to not only recognize foreign governments, but to recognize heads of state. Or not recognize heads of state, and we’ll leave that question to the president. So while the war is illegal, the use of force is illegal. The kidnapping is illegal my get my best guess is those issues will not likely end up in court and the prosecution itself will likely proceed.

Leah Litman I mean, in some ways, what you were saying is this episode is the ultimate epitome of the administration’s contempt for the law and contempt for the public. Like, you mentioned the crimes that Maduro and his wife are being charged with. They include cocaine importation, a crime which we should say Trump pardoned former Honduran president last month. They also are being charge with the machine gun crimes, switch. By the way, some Republican appointees maintain is a constitutional right. And the regime’s position, like our regime’s position seems to be foreign leaders can be tried in US courts, but the leader of the US cannot. And I don’t see why having assault rifles as a head of state is any less of an official act than overturning the results of an election, part of which the Supreme Court said were official acts of the president that he was entitled to immunity for. So I know we’ve been talking about the law a lot. And I guess one more kind of legal point, like we know so much of what they are saying is absolute bonk. Like why they are they intervened here. Even that wouldn’t make it legal, but it’s also just not true. And so I wanted to play two clips from the president’s Saturday morning media tour on state TV, i.e. Fox. Here is the first.

Clip I’ve seen what happened, I mean I watched it literally like I was watching a television show and if you would have seen the speed, the violence, you know they say that, the speed, violence, they use that term, it’s just, it was an amazing thing, an amazing job.

Leah Litman He’s launching attacks to my mind, like he thinks they’re cool, right? Like very wag the Donald. And here he is explaining why China isn’t going to object to the attacks.

Clip And there’s not going to be a problem and they’re going to get oil, we’re going to allow people to have oil.

Leah Litman Not regime change, can’t possibly be that, except it is for oil. And he said,

Clip But they should say, great job. They shouldn’t say, oh, gee, maybe it’s not constitutional. The same old stuff that we’ve been hearing for years and years and years.

Leah Litman And then when asked, like, what do you think is next for the Venezuelan people? He said, we in the United States are making that decision. Once again, utter contempt for democracy, law, et cetera. And then at his official presser, he announced this.

Clip We’re going to run the country until such time as we can do a safe, proper, and judicious transition.

Leah Litman To my mind, now the unitary executive theory is now not just that all executive power is vested in the president or that he gets to exercise Congress’s powers, too, it’s also that he get to exercise the power of every country he wants. And he also underscored they are prepared to do a second attack, a bigger one, if necessary, as you can hear here.

Clip And we are ready to stage a second and much larger attack if we need to do so. So we were prepared to do a second wave if we needed to do. So, we actually assumed that a second wave would be necessary, but now it’s probably not. The first wave, if you’d like to call it that, the first attack was so successful, we probably don’t have to do it a second, that we’re prepared to do. A second wave, a much bigger wave, actually. This was pinpoint, but we have a much bigger wave that probably won’t have to do.

Leah Litman At this point in the presser, he shifted to talking about DC, Memphis, Chicago, New Orleans, leaving me wondering, given how quickly the goal posts are moving here, hours ago, Mike Lee was saying, we’re in and out. Now, no, we are going to be running Venezuela. Are they also thinking about regime change in DC, Memphis, and Chicago, and New Orleans? Beck, I guess I would leave you with any final thoughts on this just lawless war kidnapping is the best I have for calling it.

Rebecca Ingber Yeah, in some of those clips, he’s really just shrugging off the rule of law. He’s shrugged off the constitution, not even mentioning the UN Charter, of course. And international law and the use of force space is largely policed by the outrage of other states. So one question will be, how will other states react? It’s not the breach itself. It’s not the violation that erodes the rule law. The question will be, what will be the responses? And there’s a corollary in the domestic separation of power space. Constitutional public law questions, separation of powers, checks and balances. Ultimately, these are policed through the outrage of the public through Congress. And so on the international law plane, our question is going to be the reaction of states. And on the domestic plane, the question is gonna be the reactions of the Public and Congress. And whether states remain silent out of cowardice or agreement with the cause, or an active desire to erode the rule prohibiting the use of force as a tool of policy. Resulting erosion is going to be the same. And that’s the same for members of Congress and the public generally. I think we all have to just continuously make noise and say, actually, we still care about the Constitution or else that shrugging off will prevail.

Leah Litman A great note to end on, a perfect segue to the episode we had planned. Beck, thank you so much for joining, especially on short notice. Listeners, please don’t go away. After the break is the original episode we have planned.

Leah Litman [AD]

Kate Shaw Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I’m Kate Shaw.

Leah Litman I’m Leah Litman.

Melissa Murray And I’m Melissa Murray. And guess what? It’s a new year here at Strict Scrutiny, but as they say, new year, same court, which means that before the Supreme Court kicks off and gets back into gear, we thought we should kick off the calendar year with a much needed discussion to contextualize what’s been happening over the last year in the executive branch and actually what’s been happening with this court over the last 10 years. We really wanted to do this because there are some folks in the legacy media, no names, who seem rearing to go with there isn’t the Supreme Court actually really good right now, takes whenever the court does something that is questionable or even mildly okay, like ruling against the Trump administration on some of these matters, even as they go even further to expand the president’s powers in others. So. They have already begun their whole, actually the court is really trying to reign in this court by giving Congress more room to reign in this president, which is actually kind of hilarious. But we wanted to maybe take a step back from all of that noise and really provide you with a conversation with a scholar who actually is an expert on the idea of executive power, the way that executive power can easily tip into autocracy and exactly how modern autocracies come into being. And how they use the law and the courts to achieve their ends. This is someone who can tell us everything that we need to be on the lookout for, the signs we ought to be recognizing, and so much more.

Kate Shaw And that person is none other than Kim Lane Scheppele. Kim is the Lawrence S. Rockefeller Professor of Sociology and International Affairs at the Princeton School of Public and International affairs and the University Center for Human Values at Princeton. She’s also a faculty fellow at the University of Pennsylvania Law School. And she is someone whose academic work and popular commentary is absolutely indispensable at any time, but in particular right now. We are so happy to have you on the show. Kim, welcome to Strict Scrutiny.

Kim Lane Scheppele Lovely to be here. I hear you guys all the time. Nice to actually be talking to you.

Melissa Murray Kim, are you a long-time lurker, first-time caller, is that what this is?

Kim Lane Scheppele I listen to your show every week sometimes more than once just to make sure I got it all.

Melissa Murray That’s exactly right.

Leah Litman So, you know, as Kate and Melissa suggested in the intro, Kim is the leading scholar on how democracies use law and constitutionalism to morph into autocratic systems of government. So Kim, can you get us started just by outlining for our listeners what autocratic legalism is?

Kim Lane Scheppele Yeah. So a lot of people think that the way democracies fall is with tanks in the streets. And actually we’re actually having some of that in the U.S. Right now. But what tends to happen in most other countries when you get an aspirational autocrat who’s elected to office is that they entrench themselves in power forever and they do so by loosening restraints on the executive branch. And a big part of that is also capturing usually the highest court in the country. Let me just say that I worked for four years at the Hungarian Constitutional Court, one year at the Russian Constitutional court. Those are both courts that have been captured. So I’ve worked inside these institutions and seen them fall. And since this is a show about the court, let me just a one thing that tends to happen to courts in these contexts. So the first thing that happens to happen is there’s a swap out of justices. There’s a change in the way that justices are appointed. And, you know, as we saw in Trump 1, there were… The unusual gift of three justices, but two under, shall we say, irregular circumstances. That’s the kind of thing you see at the beginning of constitutional capture. And then what you see, and this is, when people think it’s a captured court, they think that it will stop looking like a court or acting like a cord. And actually the US Supreme Court is kind of, shadow docket cases are not actually giving us reasons, but the thing about captured courts is that they don’t rule in every single case. For the government they’re trying to defend because they wanna preserve their appearance of independence. They wanna preserve the fiction that they’re still actually operating in law rather than politics. So what you’ll typically see is all the crucial things that have to do with executive power. That lane, everything will go in favor of the aspirational autocrat. But every court has a mixed agenda. So you’ll see, for example, some rights cases that may not be so crucial to the consolidation of executive power. And those might actually be the ones that the court picks to say, look how independent we are, we’re gonna rule against the executive on this. So it’s really crucial in looking at these cases of autocratic capture and the courts to separate out what’s loosening the restraints on the president cases from the everything else cases.

Kate Shaw Interesting to hear you say the kind of irregularity or changes in the mechanisms of appointment because some of our younger listeners actually might not remember the circumstances under which both Neil Gorsuch and Amy Coney Barrett joined the court but can you just remind everyone of that and then you are saying that that is even though it shared certain features with previous appointments or both of them did, they were anomalous in pretty important ways and that that matters a lot.

Kim Lane Scheppele Exactly. So the seat that Gorsuch now occupies came open under President Obama pretty far ahead of the election. It was what you’ll remember 14 months or a year or something.

Leah Litman It was in February. Yeah.

Kim Lane Scheppele February, right.

Kate Shaw Almost a calendar year.

Kim Lane Scheppele Exactly. And so Obama came forward with a nominee whom the Senate refused to confirm. They just let the thing die. I mean, they just did not act. And in so doing, they saved that position for whoever was going to be the next occupant of the office. I’m doing this with all of that proper names to emphasize the procedural irregularities rather than the personalities, right? And so sure enough, Donald Trump wins and he gets a seat as soon as he gets there. Even though that seat should have been filled by Obama. Okay, and then the argument was, we never let any president nominate someone so close to an election because we want the court to follow the election returns and blah, blah, okay. So then what happens is, of course, Ruth Bader Ginsburg dies really right before the end of Trump’s term. And rather than say what they had just said before, which is, an opening comes this close to election, let’s wait for the election return. Trump immediately speeded up a nomination and the nominations process and the hearing was literally going on during the presidential campaign. So Trump got his third justice in the nick of time right before he was voted out of office. So if they were following the rule that they were gonna use for the Obama judge, they shouldn’t have named the third Trump judge, but they compromised on both scores and Trump gets three judges. That’s the kind of thing you see.

Leah Litman So as you were talking about, you know, how courts behave in autocracies, you distinguish between cases on presidential power and autocratic control on one hand and individual rights on the other, where they might be more inclined to kind of show some signs of independence or at least some superficial appearance of independence. So could you elaborate on the distinction between those two kinds of cases just so We know. What to look for as we start to see more rulings involving the Trump administration.

Kim Lane Scheppele Yeah, so I guess the case I would keep my eye on now is, of course, birthright citizenship. That’s obviously something Trump really wants. The, shall we say, doctrinal support for his position is rather thin, as you’ve repeatedly said.

Leah Litman Satherthin is very generous.

Melissa Murray That’s the reading part, Kim. like if you can read, its then.

Kim Lane Scheppele I am trying to be diplomatic, right? And so there’s nothing there, right. And so that’s the kind of case where they might deal him a loss, because frankly, whether he wins or loses on that is less crucial to whether he’s going to stay in power forever. It’s part of his immigration agenda. It’s a part of a lot of other performative cruelties that he’s up to that the court has endorsed Arvetti. But that’s kind of the case where you could imagine him losing, right, It’s that kind of thing. And actually, I mean, I’m thinking of some of the courts where I worked, when Viktor Orban was consolidating power in Hungary, the Constitutional Court voted for everything that he wanted to do to stay in power forever. And then every once in a while, and this may be something we’re gonna see coming up, it’s too early, but what would happen is that Orban would change his mind about something, but he didn’t want to appear to backtrack. And then suddenly… There would be this case that would come to the court, and the court would declare the thing that Orban found inconvenient, unconstitutional. And then he would say, I’m following the law, but it was something he wanted them to do anyway. And he was signaling through back channels he wanted then to override something. So the more entrenched these governments get, the more they may find there are things they wanna backtrack on and redo, and then the court’s useful for that.

Melissa Murray Well, can we take a beat on that? This is a Supreme Court podcast, obviously. So we are focusing on the roles of the court. You just mentioned this example from the Orban regime in Hungary. Are you seeing similar kinds of examples in our system where the president is either backtracking on something or there’s some new kind of thing that he wants to do and there seems to be a kind of backchanneling way in which the courts are approached? To make this happen or is that something that is really too far in the offing?

Kim Lane Scheppele No, the place where I see it is actually in the tariffs case. So the court could have sped that one up, right? It’s sort of doing that on a more normal schedule. It’s slowing it down. And what Trump is doing in the meantime is redoing most of the tariffs he cares about under other legal authorizations so that by the time the court rules against him, which they might to prove they’re independent, it won’t matter very much because he’s actually taken all the tariffs he cares about and put them under different legal headings. Right? But the court is slow walking to give them a chance to do that. And then they may hit lower the boom on the tariffs, but it won’t matter. Right? So you see this kind of, you know, it’s almost as if the executive walks with one foot and the court walks with the other and they’re paying attention to the gate. So that’s one place where I kind of see that here.

Kate Shaw Can I ask you, Kim, to follow up on something else you said in your first answer, which is another indication that we are seeing unfold something that looks like a playbook used elsewhere is the court’s increasing turn to the shadow docket. And we have talked extensively and very critically about the kind of fundamental lack of regular order, failure to give reasons to do the basic things that courts are supposed to do. Um, but what I don’t think we have brought out is that this is not happening. Just at the U.S. Supreme Court or that it has certain kind of parallels to moves away from regular order or to innovate using these kinds of mechanisms in other places. So should we understand the shadow docket in broader terms than just as a real break with the this Supreme Court has typically done its work.

Kim Lane Scheppele Yeah, so I think absolutely. So for two reasons, I mean, one is that procedural outs are very often ways of making substantive decisions without appearing to make substantive decisions. And that’s something I’ve seen in other courts where suddenly they decide they don’t have jurisdiction to hear something they’ve always had jurisdiction to hear, allowing the thing to proceed, for example. So, you know, one of the things that we see here, I wrote a… Column on this for the contrarian called the Supreme Court orders fish soup. Yes, we’ve cited that. It’s amazing It’s like, you know if if if basically if the court is lifting stays and allowing the destruction to happen They appear not to have ruled on the merits and not to a fundamentally changed settled law But by the time they get around to deciding questions and they may well This could be another one of those areas where they may decide you know, oops, an agency shouldn’t have been canceled when they get to the merits. But there’s nothing left, there’s just rubble, right? And so because they’re allowing the destruction to proceed, they’re actually limiting the remedies that may be made available when they finally make the decisions, right. So one thing I’ve written a lot about in the context of the US, mostly the Guantanamo cases and other countries is that when courts are pressed politically between two competing sides and they really don’t want to appear to be. Partisan to one side or the other they’ll give one side the rule and the other side the remedies So for example in all the Guantanamo cases, you know when the headlines read, you no court slaps around Bush, right? When you looked at what happened to the actual people who brought the cases It was always something worse than before they started It’s that kind of thing. And so what we might find here is this in reverse, right Which is Trump is going to win on the remedies because of what’s happening on the shadow docket And then they may actually come out with some cases on the merits, which won’t matter at all because whatever it is they decide will have already been destroyed, right? So look also for this kind of thing that happens in lots of courts. One side gets the rule, the other side gets the remedy.

Leah Litman So this is a question that I often receive and I know we have talked a little bit offline about which is In the event or when the court inevitably rules against donald trump in some of these cases be it the tariff case be at birthright citizenship Won’t you know we all have to eat crow because this will all be Reflective of some grand master plan by which the court accumulated the capital necessary to rule against Donald Trump. It was just keeping its head down, right? Waiting for the right case to do so. And it just had to do all of this to take a stand. And aren’t you so happy that they just gave Trump everything he wanted for a year and then protected birthright citizenship? I guess. What do you say? We get those kinds of questions because I just want to pull my hair out.

Kim Lane Scheppele Yeah, well, this is what the Hungarian court did after it was back. This is what the Russian court did, after it’s back, you know, this is what PAC courts do, right? Is that they have to make it look like they aren’t just politicians. And so they’re going to figure out what are the cases that we can actually decide that will allow the autocrat to continue in power and to continue to consolidate everything he cares about while still us appearing judicial and above the fray. So in fact, it’s exactly that, you Kind of approach, you know where they’re gonna they’re going to be a couple cases and then what’ll happen you’ll know this I mean all of our law professor colleagues will say you see roberts really was an institutionalist or Really the shadow daca didn’t you know? Foreshadow what was going to happen on the merits and you know, and there’s so many and here’s the here’s The good thing and the bad thing about that, right? We have so many colleagues and people who specialize in focusing on the supreme court Who have so much at stake in believing that law is still going on You know, and every little sign of it will be taken as hope that in fact, you know, the whole thing didn’t die, you know in the last decision where we saw it die. Okay, so let me confess something, which is that I haven’t taught American constitutional law since Bush v. Gore. Okay, I’m the canary in the mineshaft. I got out then. I worked on that case. I was in Tallahassee. I was working on what would have been the sequel if the court had gone the other way. And you could just see that that was a case in which the court was willing to simply vote Republican. And we have a court that is continuing to simply voted Republican. How else to make sense out of the Texas gerrymander case? And if they come out with the opposite result in California on the basis of some made-up doctrine, I mean, this is a court is mostly voting Republican on all the cases that are crucial to the consolidation of executive power. And I hate to say that because You know, I’m sometimes a political scientist. I’m, sometimes, a law professor. The law professor in me wants to say, they’re still doing law. But I think they got off that boat a long time ago. And I think that’s where we are. And they will occasionally do law-like things just to kind of tease us and bring us on board. Haven’t we all dated guys who did that, right? Like, you’re just terrible. And then they kind of give you, like, the little hint that maybe they love you after all. They’re breadcrumbers, is what you’re telling us. They’re breccrumbers. It’s law, baby. It’s just like bad boyfriends, right?

Melissa Murray All right. Like the whole idea that they’ve jumped the lawboat a long time ago. I don’t even think they jumped off. I think Pete Hegseth torpedoed the law boat a long time ago with many things. I am actually really interested in this idea of them using their merits docket decisions to sort of buy themselves some goodwill, consolidate capital for themselves, even as their shadow docket decisions have already dismantled the thing, right? So I’m thinking precisely of the Department of Education, like, you know, so what if they come back later and say that was completely unlawful, like they’ve dismantled the Department of Education it’s going to take a lot of work to rebuild that. Do you ever see a scenario where they might come back with some of these merit decisions, but rule against the president, but there’s actually a new administration in place. And so the impact is

Kim Lane Scheppele doubly bad? Yeah, well, they’ve already done that. And this is something, I mean, something else I’ve seen in comparative perspective. They may suddenly decide that the civil service will be dug in after all of the Trump appointees have infiltrated themselves all the way through. This happens at almost every place where autocratic consolidation has occurred. Because you’ll find that the loyalists to the prior government burrow themselves into protected positions. Then the new pro-democratic government comes in. And the court say, no, no you can’t touch all those offices because they’re buffered and protected, suddenly we’ll get back four clause dismissals or civil service or something to keep the people burrowed in. So I completely expect that to happen. Now, what I’m worried about is that we don’t get another government. I mean, I hate to say this, but I’m really on the more pessimistic side of this.

Melissa Murray Welcome to the show, Kim.

Kim Lane Scheppele I know.

Melissa Murray You’re among fellow travelers.

Kim Lane Scheppele I’m worried the midterms and I’m worried about 2028. I mean, I think it’s absolutely not at all clear that we won’t get a third term of Trump. And I think, it’s actually not clear that will have free and fair midterms. And I, think we’re not paying enough attention to that, to all the infrastructural work going into that. And the Texas gerrymander case is just a little sign that we’re, not going to get much help from the courts.

Kate Shaw Yeah, I mean, I think every time the sort of the press kind of breathes a sigh of relief and says, well, he, Mike Johnson tamped down the third term talks, so we don’t have to worry about it anymore. I’m just like, what, what are we doing here? Like, of course we have to worry about.

Kim Lane Scheppele Trump is giving out Trump 2028 hats to every dictator that visits him in the Oval Office. Absolutely. They’re selling this merch in the White House.

Kate Shaw We have to take this extremely seriously and to do it now, I completely agree. Well, so I wanted to ask a question that maybe the premise is unduly optimistic, but I’m going to pose it anyway. And that is we’ve been talking a lot about the kind of comparative example of Hungary and Orban, which obviously you’re an enormous expert in. I wanted you to also bring out a little bit your comparative expertise in the context of Brazil. And the case against Bolsonaro is, I think, a really important example of accountability for trying to overthrow a government. So obviously it has certain resonance to the American experience. And I know-

Leah Litman Supreme Court didn’t stay that prosecution on the Shadow Docket.

Kate Shaw Wow, and so we should give them enormous credit for that, shouldn’t we?

Leah Litman Exactly, exactly.

Kim Lane Scheppele They tried, you know, Trump tried. They sanctioned the judge presiding over the trial. I was there when that happened, yeah.

Kate Shaw So I do want you to talk about that because I think that’s all a pretty wild story. But I also think taking a step back, if we are ever on the other side of this, which I think you’re right is a big if there will be, I think, enormous debates and questions about whether and how to seek accountability. There are obviously people I think even on the left who think, you know, maybe in good faith that Trump supporters. Actually feel like he was targeted and that in some ways is responsible for where we are I in no way. I’m endorsing that I am just saying there will be debates about whether a clean break and forward-looking Kind of posture is better for democratic and constitutional restoration or whether backward-looking accountability is required So welcome to you know weigh in on that But I am Just curious about sort of what you think about Bolsonaro in the context of those likely future debates if we are Lucky enough to ever be having them

Kim Lane Scheppele Yeah, well, so first of all, it could be another, the system worked and we issue a pardon, which is the Watergate scenario, right? So what happened in Brazil? So what they have is a constitutional system built for resilience because they had a dictatorship before. So as we think about stuff going forward, I think we also need to think about institutional reform because we’re gonna have a lot of rubble and there’s no point in trying to patch it back the way it was. So the reason why they could do this in Brazil is that many modern constitutions, particularly ones. And dictatorship, have what they call fourth branch institutions, and fourth branch institutions are walled off from political influence, kind of the way courts are supposed to be, walled up from political influence. And in Brazil, the federal police and the federal prosecutor are fourth branch institution. So when Bolsonaro tried to overthrow the government, there was a plot that they uncovered, which was far worse than what we saw on their January 8th, which was a copy of our January 6th. They literally had a plan to poison the president and shoot one of the Supreme Court justices. In fact, they would have done it already by the time they uncovered the plot, except that Marais, the judge they were going to shoot, happened not to come home on time the day that the assassins were waiting outside his house. Okay, so the federal police uncovered this plot. They put together all the evidence. They published all the evidences. They published the entire police dossier in November of last here. It went then to the prosecutor’s office, who had to decide whether to bring charges, politically buffered prosecutor, not our DOJ, right? And the politically buffed prosecutor then came out with a detailed indictment explaining what charges would follow from what the police had found. The prosecutor then looked over this file, brought forward a detailed indictment, and then the way these cases go, if it’s a head of state, is they go to the Supreme Court for first instance trial. And the Supreme Court has to decide whether to take the case based on the record and the indictment. Also an independent institution. So you’ve got three independent institutions. All of it was being done in public. The trial was so much in public, here’s one outrageous thing about the Brazilian Supreme Court in case you don’t know it. They don’t just have oral arguments in public they don’t run the trial in public they deliberate in public they have their own TV channel. People watch this stuff. They come in and Yes, they deliberate in public. And so they were able to reach this judgment, finding Bolsonaro guilty. He was sentenced to 27 years in prison. But here’s the problem. Brazil, like the US, is still a 50-50 split country. There’s an election next year, and Bolsonaro’s people may well win the Senate. They have an upper chamber like we do, which represents the regions. And the Senate needs only a simple majority without the involvement of the other house to impeach judges of the Supreme Court. And all the polls are showing that Bolsonaro might win the Senate next year, in which case all these judges may be gone. Okay, so before you say this is the great turnaround and the great example, one thing that we know about countries that have had these episodes of autocracy is that it’s extremely hard to come back. Because the supporters of these autocrats are still around. They burrow in, they occupy choke points, they can still win elections. And so Brazil is a great example, buffered institutions that did their work and a bad example because they made it very easy to impeach judges. So it’s a mixed story.

Melissa Murray Kim, not all governments that come under attack from these legalistic autocrats actually jump the shark and tip into autocracy. Some of them pull back from the brink. So what are some of the steps that you can take to put your democracy back on the path to being a democracy, to keep it a democracy going forward? And are we doing any of those things right now?

Kim Lane Scheppele The short answer is no, so we’re not doing any of those things, and in fact, even the governments that look like they’ve turned around find it very hard. So another one that turned around is Poland, where they had eight years of autocratic capture. They really destroyed the independence of the judiciary. There are about 3,000 judges who have been appointed because they’re political loyalists. The Supreme Court’s been captured. I mean, just the whole system, judicial system, is really a mess. New government comes in. They’re going to do something to change it. They pass a law. The president who’s a hangover from the prior government vetoes it. So then they try other things, executive actions that can’t be vetoed. And then this pact, constitutional court says it’s unconstitutional. So they haven’t been able to do anything to overcome this pact judiciary. They can’t do what they said they would do with their election promises. So they’re losing popularity and it’s probably the case that the autocrats will come back. It’s very hard in these circumstances. So what can you do? The thing you can do is try to idiot proof things before they happen. So we’re seeing, like in Germany, which we lost the chance to do, frankly. I mean, a lot of us were talking in the last days of Biden when you could see that this was gonna happen. There were things we could have done and didn’t. So let me give you a good example, which is Germany, sees now that the AfD, the far right party, is likely to have a blocking vote in the parliament for constitutional judges to the court. So, what they did before the IFD got the blocking vote… Was they amended the constitution to essentially eliminate the threat of the blockage by saying, okay, we need a two thirds vote if we don’t get it on several rounds, then it will switch and go to the upper house and they get to vote by two thirds. So they developed a trap door around the block they could see coming. And that means the odd day can’t block judges going onto the constitutional court now. They got out ahead of it. We need, I mean, we should have done it already. You know, it’s gonna be a real struggle to figure out how to get this back, but this is why we need to think ahead a little bit to how we can figure out, you know, what are the plausible political things we can do so that if we ever get the chance to build back better, we don’t build back the same, and we build back back better enough that we can’t, again, fall back into autocratic capture. That’s the challenge.

Kate Shaw All right, well, Kim, we are gonna ask that you come back at some point in the year 2026 and have a more forward-looking conversation with us about some of the concrete steps we can take to start to claw our way out and also to guard against recurrence. But that was an incredibly sobering and useful overview. And we’re so grateful to you for taking the time to be with us. Before we let you go, as you know, as a listener, we have been trying to end our conversations on kind of a… More optimistic and hopeful note or at least a constructive note by recommending things to read and I know you’ve got a lot of recommendations so would you mind sharing a few things that would be kind of instructive on the stuff that we’ve been talking about?

Kim Lane Scheppele Yeah, so one of these really inspirational pieces that I read that I just assigned to my students to give them hope and a vision. There’s a legal philosopher named Gerald Postema. And he wrote this short piece in Judicature, which I think is a public access magazine. It’s called The Rule of Law in Times of Peril, An Almost Sacred Responsibility. And it cuts to the heart of what it is that we mean when we think that we’re defending the rule of law. It’s just inspirational. In case you lose your way, it tells you which end is up again. And it’s really a lovely piece. And the other thing, you know, we were talking a little bit before we started the recording. There are a lot of judges now in the district and appellate courts who see that the Supreme Court is gonna lead us into the ditch. And they’ve just decided to write for the public. They’re not even writing for the Supreme court. And I think one thing we might do is think about, let’s compile a greatest hits, right? Of some of the decisions that are written for a general public. That are really designed to remind people of why we care about constitutionalism and the rule of law. So a couple of my nominees here, Judge Wilkinson and the Abrego Garcia case from, I think it was last March, AAUP versus Rubio. That’s the one that starts with the handwritten note saying, Trumps have tanks and partons, what do you have? I must say, I gave this to my international law students this past semester and they said, judges can write like that. And I said, well, you know, when the ship’s going down, you gotta get people’s attention, but the whole opinion’s worth it. Most recently, Judge Ellis in Chicago Headline Club versus Gnome, which is the one where she documents everything ICE has been doing in Chicago and posts the videos of all the things that ICE is doing that the government said they weren’t doing. And we can just like come up with the greatest hits, you know, of some of these decisions. And then if I can take you back to darker times, because sometimes it helps. If you want to go back, a couple of touchstones for me, so we’re in the law lane, right? So if you want to read. What does fascism look like when it’s closing in? Okay, that’s not very optimistic, but Ernst Frankel’s The Dual States is just a very important read. He’s a Jewish lawyer. He writes this in 1938 in Berlin. He can’t practice law anymore. But what he sees is that for the vast majority of Germans, the legal system looks normal. But then there are these people who are just getting picked out and disappeared, picked out, and handled differently, which is exactly where we are here. And then he says, look, what there is, is what he calls the normative state where everything looks normal. You wake up and the world hasn’t turned on its head and everybody goes along thinking no problem. And then there are these people singled out. The reason why people can get singled-out, he says is because everyone else thinks it’s normal, what they see, right? And so this dual state logic is how the law works to cover up what’s happening in plain sight. So mandatory read. Hannah Arendt’s origins of totalitarianism is also a great read. Yeah, so I have a whole list of depressing books, you know? And then we can talk, actually, next time we’re going to talk about our ways out. There are all these wonderful books about what you can do. And yeah, it forms a protest. My husband grew up in the Soviet Union, so we got a lot of good examples. People standing on street corners, holding up quotations from the Soviet Constitution. The government was saying, can we arrest them for saying that? So maybe we could try that. Anyway, lots of things we can do

Melissa Murray Kim, this was, again, very sobering, but exactly the kind of eye-opener that we need heading into 2026. So thanks so much for joining us. It’s great to have you here, and we’d love to have you back whenever you’re ready.

Kim Lane Scheppele Great, love to see you guys here, elsewhere in your podcast is such a gift to all of us. Thanks.

Leah Litman Listeners, don’t go anywhere. While Kim left us on a cliffhanger about how to fight back, next segment, I’ll be talking to someone who has been leading that fight, Skye Perryman, president and CEO of Democracy Forward. [AD].

Leah Litman Welcome back. I’m your host for this segment, Leah. And I am delighted to be joined once again by Skye L. Perryman, president and CEO of Democracy Forward, one of the organizations that has truly been on the front lines and frontier in holding this administration accountable and making the whole law and accountability thing happen. Welcome back to the show, Skye.

Skye Perryman It’s great to see you. Happy New Year.

Happy New year. It has been a hot minute. And We actually haven’t recorded for almost three full weeks at this point. We tried to take a break for the holidays. Alas, fascism does not, and neither can the people fighting it. So I thought, Skye, we’d start by talking about some of the legal challenges that cropped up over the holidays, and then I’ll ask you for some big picture thoughts reflecting on the last year and the year ahead. Does that sound like a plan?

Skye Perryman Sure.

Leah Litman Let’s do it, okay. So let’s start with litigation over various funding cuts. So I know you’re working on litigation involving the American Federation of Teachers challenging the Department of Education’s termination of millions of dollars in funding for full service community schools. So can you just describe for our listeners what are full service communities schools and why they are important?

Skye Perryman This is really important to so many communities across the country. These schools provide really essential services to families, to communities, to students who need in some instances extra educational services, but they’re really such a cornerstone. And this is a trend we saw over the holidays, which is the president and the administration making cuts to things that should really not be political or politicized and doing So, at times where they hope, I think. That people weren’t paying attention and looking. We’re fortunate at Democracy Forward. Our team of lawyers and our partner organizations, we set up a plan to be vigilant, to be paying attention. And so we did bring suit on behalf of a Chicago-based nonprofit and the American Federation of Teachers. That suit will continue into the new year. And we also had to bring suit for a range of other funding cuts, including on behalf of the American Academy of Pediatrics, where the administration- so

Leah Litman So we’ll get to that one just in like one second. But before we do, I do want to add another kind of holiday season announcement that this administration gave us just to kind of underscore the point you were making about them really turning the giving season upside down. And this announcement is new. I wanted to flag it both because it is wildly illegal and will add to the harms of cutting full service community schools. And that is the Trump administration’s announcement of New Year’s Eve Eve that it would be freezing all child care payments to Minnesota in the aftermath of allegations of fraud by some in the Somali community. Skye, as I said, I know this is super new and breaking. I don’t think it’s enough or enough time has passed to allow litigation to really get off the ground. But I did want to get your reaction to this, especially since you brought up them trying to get cover from the holiday season.

Skye Perryman Yeah, I mean, it’s really perverse. And let’s just say outright, no one wants fraud to occur within the government. And in fact, that’s why we’re all so disturbed that the president, one of the first things he did last year was to fire all the inspector generals whose job it is to root out fraud and abuse in government. So just to be clear, nobody that I know of that supports the United States and wants to live in our democracy wants fraud within the Government. But this action really slaps of cruelty and of retaliation and retribution. There’s no basis for it. Oversight and prosecutions, if necessary, based on that oversight, that is typical. That is something that the Department of Justice, when it is not politicized and not acting as the personal attorney of the president, has done for many years. But this is another one of these situations where you have children in the state of Minnesota, families that are gonna be harmed. You have no basis for some broad brush approach. And then, of course, we do have a lot of concern about how. The president has been treating Somali Americans, and the rash sort of statements and retributive and frankly racist statements that have been made, it is possible that there is some fraud. But that is something that needs to be investigated on its own, and you don’t take a wrecking ball to an entire program that’s going to affect many, many children and families.

Leah Litman So you mentioned that no one wants fraud in government. Skye, I worry you might have been too generous there, given some of the pardons this president has issued to people who were committing some fraud related to government service. George Santos comes to mind, as do others. That’s right. So no one in the prodemocra- That’s right. As do others.

Skye Perryman So no one in the pro-democracy community wants fraud in government. Then that’s what I pointed out with the inspector generals. This president has really aided and abetted and really taken away so many of the protections that we have against fraud and against abuse in government and then of course does this gaslighting, where he seeks to make statements and very … Inappropriate sort of broad brush statements about people groups seeking to target people groups. We know that’s a chapter out of an autocrats playbook that we see unfold and that you see that here. And then of course it’s going to be families and children in Minnesota that really are going to harmed as a result of this.

Leah Litman And it’s not just the president’s overt racism and xenophobia being directed at the Somali community. It also seems like he has effectively deputized libs of TikTok and other right wing influencers as effective agents of the government. Some of the allegations here are literally based in part on right wing influences videotaping themselves going to daycares and asking where are the kids and being told to leave. And I’m sorry, if some strange man came to a daycare center with a video asking, where are the children, I would be very disappointed if they were not turned away. But I digress. Anyway, so you were about to get to the funding case involving the American Academy of Pediatrics.

Skye Perryman That’s totally right. And one of the themes, I know we’re going to get to 2026, but one of the things you’re going see us and others do is we have to not just hold our government accountable and this president and administration accountable. We have to hold accountable the institutions that are aiding and abetting this president in this administration, including that infrastructure that you mentioned, whether it’s on social media or whether it is going to be companies that are trying to aid and abett I. So I know that we’ll get to that in a minute, but that’s a big theme. But yes, also over the holiday. The president and the administration took aim at programs that are designed for early detection of infant and early childhood diseases and sicknesses and illnesses, including things like early hearing loss or hearing detection, programs that aimed at preventing infant and mortality and brashly canceled. Millions of dollars of federal funding to those programs, and, you know, as a result of retaliation and retribution for this administration’s disagreement with and hatred of the voices of medicine and science, the American Academy of Pediatrics, and so we’re in court on half of AAP. Seeking to get that funding restored. We’ve successfully been able to restore funding in a range of these cases where the administration has retaliated against a professional society as a result of that professional society’s, you know, kind of calling it like they see it with medicine, science, and evidence.

Leah Litman Yeah, I mean, like, this is, to me, the case that almost perfectly encapsulates the RFK, how many kids did you kill today, meme. I mean here, AAP, the American Academy of Pediatrics, has this medical research, medical programming, grants canceled because they criticize the administration’s posture on vaccinations. When, by the way, reported measles cases are at a 30-year high. And so it’s this attempt to I mean, I don’t know, like sicken the population by canceling funds, quelling expertise that is just so appalling to witness.

Skye Perryman And I think it’s also really an effort to chill, right? It’s an effort to try to send a message to expert societies, to the American people. If you cross us, if you dare say the truth and follow the science and the evidence as opposed to sort of political ideology, we’re gonna come for you in life-saving programs. And that’s why these legal challenges have been so important and this one is so important. And to be clear, the American Academy of Pediatrics has said, you know, they need to be able to work with the federal government. That’s what we need them to be to able to do. But this action is unlawful. It’s retaliatory. We’re confident that we’ll be able secure some relief in court.

Leah Litman So two more unfortunate inversions of the holiday season actions that arose that I wanted to get your thoughts on before we turn to the big picture. And the next one arose on Christmas Eve, which is when I think we got news that the Department of Veteran Affairs would be banning abortion care and counseling at VA facilities, including in cases of rape or serious health risks. And they did this. Over vociferous public comment during notice and comment period. Our listeners are probably familiar that when an agency makes a decision, they first provide notice of the decision they are thinking about making. They invite comments, and then they are supposed to react and respond to those comments, potentially by changing their course of action. So Skye, I wanted to ask you about the potential fallout from this policy, because the implications are not just going to be limited to veterans which is already horrifying enough but also like families that depend on you know the veteran in their family for their medical care and might receive treatment at a VA?

Skye Perryman Yeah, so this is really horrifying. And again, this is the administration’s playbook this holiday season was not to stop being extreme, but was to try to take some of the most extreme actions that we know that the vast majority of Americans oppose and to try and hide it among the holiday season, sort of a Grinch-like, you know, I don’t even wanna speak that ill of the Grinch, but sort of Grinch like mentality. Uh, this is really just to focus on what you just said and make sure all the listeners are following. I mean, what this means is that veterans and people who depend on the VA for care, but the people who have given the ultimate for our nation and our nation’s security are not able to access essential health care. And the other thing the administration did was while they came in early on and tried to pull back this policy going through. You know, announcing a policy, as you said, there was public comment. This act by the administration actually even sought to circumvent that process altogether, purportedly relying on a new Office of Legal Counsel opinion and really pulling out the rug from veterans and those that rely on veterans’ care. We’ve been very outspoken about this. The National Women’s Law Center, one of our partners, has been very outspoke about this, many others have as well. And I expect that you’ll see additional action. In the new year, but I think, thank you for highlighting. These are the things they were hoping to sort of sweep under the rug over the holidays. And this is a really problematic.

Leah Litman Like the Grinch, they too have awful ideas. And that brings us to the last specific, which concerns the Kennedy Center, which is still the John F. Kennedy Center. And Trump has attempted to illegally rename and rebrand that as the Donald J. Trump and John F Kennedy Center for the Performing Arts. Wanted to be clear here, the center is named by law, by statute, right? Presidents can’t change statute. So he has basically… Defaced a public building by putting up the name over the holidays. And artists have backed out, right, from performing at the center in response to this. Skye, I know your organization has requested information about the renaming. And I think this information gathering and information seeking has really been a core part of your organization’s approach and strategy. Can you explain what you’re asking for and why that’s important here?

Skye Perryman Yeah, so we’re asking for documents around the governance of the Kennedy Center. As you said, the law couldn’t be more clear. So let’s just be clear. We’re not going to find anything that suggests that it is lawful what the president has done here. But we’re seeking documents around. The governance of Kennedy Center, we’re certainly seeking communications to understand the Kennedy center has been in the president’s eyes for some time. The the law could not be more clear and to you know, it’s very clear that there is only one person that that memorial can be dedicated to, and that is John F. Kennedy. And this is really a defacing, not just of a public building in the country, but of a memorial to a president that was assassinated. And there is congressional history around this as well. So we’re starting by gathering the facts. There has already been one litigation filed by Joyce Beatty. A member of Congress who serves on the Kennedy Center in a capacity during the Kennedy center who alleges that she was muted during the meetings after they came out and bragged and said, well, this was unanimous and she spoke out. We anticipate we’ve heard from so many people across the country that are concerned. So we definitely anticipate that you’ll see additional litigation as we continue to gather information.

Leah Litman Maybe some of the information you will uncover will be a diagnosis of an edifice complex in this administration. But stepping back a bit, I know this is kind of an open-ended question, but looking back, I guess, what should people know that they might overlook or you hope people knew about the fight against the Trump administration that has been ongoing over the last year?

Skye Perryman Yeah, so I think that a few things we want to make sure people are understanding. One, and I say this with full scope acknowledgement and understanding, we work with these communities and people every single day that so many people have been harmed by this administration. And so what I’m about to say does not undermine that harm, it does not mitigate that harm. You have a president that has one of the most powerful offices in the world seeking to harm people. And that is hard to stop. But by and large, the way in which people and communities have shown up in the streets, and we’ll talk about that, but also in the courts, has largely been working in slowing and stopping much of what this administration would do. And so what that means is that it is really bad now. It would be so much worse and unrecognizable without the legal challenges. There have been nearly 500 challenges filed in federal court over the last year. That’s not because people love suing the president. It is because of this extreme behavior. The vast majority of those cases do not go to the Supreme Court and have not gone to the Supreme Court, even on the shadow docket. And in the vast majority those cases where courts have already issued some preliminary rulings or other types of rulings, you have the president losing far more than he is winning in court and you have people prevailing. So we want people to understand that because the courts remain a tool that the people have that we are going to have to utilize and exercise over this next year. It’s not a perfect tool. And certainly, and you and I have talked about, there have certainly been many disappointments where the Supreme Court has gotten in the way of the justice that lower courts are administering to people in unexplained decisions. We have a blockbuster merits docket coming down. You’ll cover all those things. But that doesn’t take away the fact that the ability of people in this country to initiate litigation against their government and to stand up and say, you are doing this to me and my community and I’m going to make it public. I’m going to require public accounting, and I’m gonna hold you accountable in a court of law. That remains a huge power, and it’s one that’s gonna have to be utilized over the next year. So that’s one thing we want people to know. I think the other thing we people to now is it really is up to all of us as to what happens next. Powerful institutions have not stepped up to the plate. They have pulled back. But what we have seen is that people have stepped forward, whether that is millions and millions of people in the streets. We’ve seen the two largest peaceful mobilizations. In US history happened over the last year, or whether it is in the courts or communities, next year it’s gonna need to be at the ballot box. It really is up to all of us. And so what we have to do in 2026 and what we did in 2025 is we have the silence that little voice in the back of our heads that suggests that there’s nothing that we can do, that it doesn’t matter, that it’s all going downhill and there’s something we can’t do because the number one power that an autocratic actor has and that autocratic movements have. Is convincing people that they don’t have power. And we have to defy that every single day and show up and be in resistance to that. And so I think those are the things we really want people to focus on as we look back in the last year and as we move forward.

Leah Litman To the next year. It’s almost like an inversion from the usual suspects. The greatest trick the devil ever pulled is convincing the world he didn’t exist. The greatest the autocrat pulls is convincing you that you don’t matter. So on that note, I also wanted to echo, I loved what you said your organization was thinking about for this upcoming year, which is holding not just the president accountable, but also all of the institutions that are enabling what this administration is doing. So I guess I’d invite you either to expand on that or add you know any other advice as we head into this new year.

Skye Perryman Yeah, so number one, we have to continue to just show up in defense. So you’re going to see these swift legal actions filed, whether it’s over the holidays or who knows what he’s going to plan in July as we’re celebrating 250 years. So you are going to that. So that’s got to continue. But this is a real opportunity to also go on offense and to make it clear that history is watching and that people are watching today, what side folks are on. And so as we look to the new year, we’re looking at the big bill. That authorized just exponentially greater funding towards ICE and other types of activities that we believe will violate the constitution and violate people’s rights. That doesn’t have to be that way. The president could make a choice to operate lawfully and to operate in a way that is not harmful to people, but that’s not a choice we’ve seen them make. And so you will see us really scrutinize what companies and institutions are behind aiding and abetting. Those types of rights violations, you will see us scrutinize pathways of liability for federal agents. I mean, these people are individual people and in many states and under certain legal structures, you can be held personally liable if you violate people’s rights and harm people. We’re litigating something right now in Portland where kids have been tear gassed, have been in their housing development in. Oregon and they are being poisoned by the federal government and so you will see us sort of take those aggressive actions to try to make sure that people are protected and that we can go on offense in those ways. And then the other thing for the new year is we’re in the middle of a fight but we also have to remember that the work of justice has always been urgent and you’ve been so good at highlighting this, but. Our systems and structures were not intended initially to hold all of us. They certainly left the two of us out and so many of your listeners and so Americans. And so this is really an opportunity to reimagine what it means and what it can mean for the next 250 years to be in a democracy and to take bold steps and set the stage for taking bold steps. That reimagines and reframes our democracy as a society that is meant to hold everyone where we all can thrive. So at Democracy Forward, one of the things that we’re doing is we are launching a project that is listening to the American people across the country on what they expect from their government, what they want to see, actually being informed by the people. And then all of those federal workers that Donald Trump indiscriminately fired that have years and years of expertise that have seen up close what was working and but wasn’t. Um, we have a great program at democracy forward where we’re putting, we’re able to put some of those public servants to work on behalf of the people to help plan and, um, put the work in place for that rebuild called democracy works two 50. So, um those are some things that we’re hoping people can both hold it all at the same time. We’ve got to defend and disrupt, but we also have to build.

Leah Litman Well, that is a great agenda. Thank you so much, Skye, for making time to join, as well as for all of the work that you and your organization are doing.

Skye Perryman Thanks so much.

Leah Litman [AD]

Leah Litman So Skye and the team at Democracy Forward have been doing their darn best to fight back against the Trump administration, including in the courts, though not exclusively. So it’s no surprise that the Trump regime is trying to radically remake the federal courts. I wanted to play an exchange at a recent Senate confirmation hearing before introducing our next segment about Trump’s lower court nominees. And this was a hearing for Justin Olson, who was nominated to a federal district court in Indiana.

Clip During that sermon, you said that marriage was not intended for all people, including, and I’m going to quote your words, our handicapped friends are our persons with physical disabilities that might prevent the robust marriage that we’re called to. Close quote. Did you say that?

Clip I think I did, Senator, yes.

Clip Well, in one of them, you said, quote, transgenderism, homosexuality, fornication, and all sorts of sexual perversions was a form of hypocrisy from, quote your words, shame on the inside. You say that.

Clip That I don’t recall the precise wording, but that sounds.

Leah Litman So that gives you some sense of the people they’re putting up and now for our conversation about those people with one of the good ones, i.e. A good person, Josh Ortner, President of Demand Justice. Welcome to Strict Scrutiny, Josh.

Josh Ortner It’s great to be here.

Kate Shaw So let’s tell our listeners a little bit about demand justice if they don’t know about it. So it was formed during the first Trump administration. And our understanding is that you guys are really trying to get progressives and Democrats to focus on the courts, a goal we very much share, and that you are also really focused on trying to instill some discipline in the messaging about things like the role of courts and judges in our democracy. So long time listeners to our podcast will remember that we actually spoke to demand justice’s first president, Brian Fallon, as he was stepping down from the organization. Did I get that basically right, Josh?

Josh Ortner Yeah, that’s exactly right.

Melissa Murray As we know, demand justice stays on its hustle. It recently issued a report on the Trump 2.0 judicial nominees. Those are the judicial nominees that have been nominated in the second Trump term. And surprise, surprise, they are even worse than the Trump 1.0 nominees. So today, we are going to be talking with Josh about the report, the nominees, and what all of this means for the state of the federal judiciary. So. Let’s dive right in. So Josh, during and after Trump 1.0, people thought that because the Supreme Court ruled against the administration in the census case and the DACA rescission case, and because the court upheld abortion rights, that’s a little bit of an overstatement, I think, in June medical, that the courts were going to be a permanent bulwark against authoritarianism and Christian nationalism. But we know that institutions are not static. They change and evolve. And This view of the Supreme Court as a kind of static institution that is gamely defending democracy ignored how the Trump administration was changing and, more importantly, how the Trump administration really changed the Supreme court. And indeed, our sense that people were not grasping the nature of this evolution in real time, that’s basically the origin story or genesis of this podcast. We really wanted people to understand that. So. Is that your sense as well as what happened and what’s going on?

Josh Ortner Yeah, I think that’s right. And I think it sort of mirrors the genesis of demand justice, too. I think we would all agree, Democrats or progressives are essentially a generation or behind more, not just in sort of activating our base around the importance of the federal judiciary, but in the next step after that, which is once our base is activated, once people on sort of our side who sort of view the world in a more progressive way are understanding and sort of activated of how the court’s effect. Everyday life, how they protect or progress or not. Then the next step is we’re also a generation behind in those voters, those advocates holding accountable our elected representatives and those in the Democratic caucus. And I think as part of that, one of the things that demand justice has tried to do is that our side is really terrible about talking about the federal courts with a political lens. I think for a long time. We’ve really thought about the courts as a sacrosanct institution. I remember one of the ways that I was sort of converted, I think, was in law school. I was taking a class specifically on the 14th Amendment, and we were going through the jurisprudence of abortion. And I remember the democratically nominated justices writing with sort of precise medical terminology. They were sort of following the facts in the case before the court. And I remembered reading the Republican nominated it from justices who were I had, you know, because I had worked in politics before I went to law school, I knew the language. I was like, this is Frank Lunt’s language that is appearing in Supreme Court jurisprudence. And I think that we’ve been really behind in kind of calling that out. And I that, you now, one of the things that has been my experience is when you talk to, and I know this is the case for you all too, is when talk to some people who are aligned with us who are coming from a more legalistic background, you start talking about the court, especially the Supreme Court. As an entity that looks at what it wants a political outcome to be, especially in the Robert Court, especially with these justices. If you start talking about them as political actors, as trying to see what are they trying to accomplish and how are they sort of backfilling the jurisprudence, you’re sort of looked at as if you are sort of besmirching something wholly. And so, you know, I agree entirely that, I think especially this Robert’s court. Um, has sort of at first sort of put up the front a little bit that it was a little bit more responsive to the sort of the, the goings on and sort of the, where things were.

Melissa Murray Lies. All lies.

Josh Ortner Yeah, yeah. But I think that, you know, I think that that mask is dropping and I think it’s dropping especially quickly in Trump 2.0 with the shadow doc and everything else. And so, you now, I think that’s true up and down the court, it’s especially true with the spring.

Melissa Murray So can we go back just a minute to what you said about people being unwilling to see the court as part of politics? So Kate and I, I guess this was almost a year and a half ago, were at a briefing at the White House. And we were talking about a lot of things. And one of the things we were taking about was abortion politics. And we wanted to talk about going into the election how this Supreme Court, which had two septuagenarian justices who are likely to be stepping down if there’s a Republican administration. How abortion, everything was on the line and not just because of jobs, but just generally. And we were shocked by how unwilling they were to engage the question of the courts. Like they thought the voters couldn’t understand it. And maybe that’s true to some degree. I think it likely isn’t, but it feels that right now we’re in a kind of similar position where people don’t understand the courts having a political valence. We’re in this moment where people are saying, the courts are standing on business and standing up to Donald Trump. And I think that’s true in so far as the lower federal courts go, but we know that lower federal courts can change. And one of the things that your recent report really points out is that this kind of change is very much looming because these nominees are even more extreme than the ones that preceded them in Trump 1.0. So just an example, your report points out that, quote, not a single nominee. Stated the affirmative fact that Joe Biden won the 2020 election. Not a single nominee spoke to the events that occurred on January 6th. Why are those omissions so significant in your view and what can they tell us about what is looming?

Josh Ortner Well, I think there’s a couple of things. First, I thing that as a general matter, Donald Trump is paying a lot more attention to not just the Supreme Court, but his lower court nominees, this term than he was the previous term. As you know, he’s announcing every single one on Truth Social individually. They’re no longer like sort of spreading around the record of announcing these nominees ahead of time. And I think like everything else in his administration, the number one thing he’s looking for essentially with anybody that he nominates for anything or hires for anything is loyalty. And what sort of we assert is the most disturbing thing about these two questions is they’re essentially Trump’s litmus tests, right? You cannot exist in a Trump administration and say that he lost the 2020 election or that January 6th was an attempted violent coup of the government, right. We saw that with, I think it was the line prosecutors from the Department of Justice. You know, no one, I sort of, I’ll sort of posit the idea that if one of these, and these were larger questions in QFRs and we’re encouraging Democrats to actually answer them in live hearings. If one of these nominees was asked point blank in an open hearing, did Donald Trump lose the 2020 election? And they said, yes. I don’t think anyone disagrees that their nomination would be pulled within hours. And so I think that, so our assertion here is essentially that it’s not just that all of these folks are extreme, and they are, it’s, you know, and crypto bros and everything else. It’s not that they’re sort of corporatists, and they’re, but I think. What’s interesting about this group is they have self-selected themselves as people who are willing to compromise their integrity, their independence and basically commit to a litmus test and say, yeah, I’m not willing to contradict the president on the overthrow of an election or the violent attack on the Capitol. And what that says to me is one, they’re disqualified from the federal bench no matter what. And frankly, we’ve now raised questions about why. As of this point, 18 members of the Democratic caucus see fit to vote to confirm them. But two, what happens when these judges who, and we look at the judges from the first Trump term who did not have to take what I assert is a political emiss test. What happens when the judges are on benches across the country, and there’s an election interference case in front of them when there’s a political prosecution of one of Trump’s enemies in front them. And they have bipartisan credibility because Democrats saw fit to to vote yes. And so. Yeah, I think it’s a real.

Kate Shaw We want to come back to those Democratic votes, but actually just to quickly follow up on something you said. So the nominees are giving these like boilerplate answers around the 2020 election and January 6th. And am I right that you said you have said, but they’re doing it in their written questionnaires or questions for the record. Have you not succeeded in getting any Democratic senators to pose these questions in the hearings? And if not, why not?

Josh Ortner They asked it, so it was asked of Imo Bovee, but so now actually I believe we’ve had conversations that the Democratic senators are gonna start asking.

Leah Litman Okay, good.

Josh Ortner Verbally, because, frankly- Great New Year’s resolution. Yeah, correct, correct. And then a follow-up question, the follow- up question, it was so funny because I was having a conversation with one senator and I said, I would suggest the conversation could be, the first question is, was January 6th attacked on, was the Capitol attacked on January 26th? And if they sort of did this dodge, say, did you watch the footage of January 6? And I suggested the follow up question be, what did you see? Because I don’t think they can answer these questions because like you said, I think the White House basically gave them the answers that wouldn’t annoy Donald Trump, and that’s the most they’re willing to say.

Leah Litman Yeah, so let’s stay on the confirmation process for a minute and maybe offer a bit of context because you know, I think what some people might not understand is that confirmation hearings are really an important mechanism for working out one what laws established as well as societal understandings of precedent and the public’s expectations for how precedent will be followed. For example, you know when Robert Bork criticized Roe versus Wade, Griswold versus Connecticut, you know the case about contraception and Marbury versus Madison like literally the foundational. Case on judicial review, it doomed his bid for a seat on the Supreme Court. The public viewed those decisions as settled and Burke’s opposition to them was a problem and the public’s response to his answers helped cement the idea that those cases were indeed foundational to the American legal order. And something else your, you know, report documents is the Trump nominees have had very, let’s say interesting responses to questions about settled precedents. And it’s not just the Trump 2.0 nominees. So we wanted to play this clip. From the 2018 confirmation hearing of Wendy Vitters, now the chief judge of the Eastern District of Louisiana.

Clip Ms. Vitter, do you believe that Brown versus Board of Education was correctly decided?

Clip Senator, I don’t mean to be coy, but I think I get into a difficult Difficult area when I start commenting on Supreme Court decisions, which are correctly decided and which I may disagree with

Kate Shaw At some point, in our not-too-distant past, refusing to accept Brown as rightly decided would have clearly been disqualifying. But it is wild how things have changed, and as you note in the report, there have been some of these Trump 2.0 nominees who have made pretty interesting statements and given pretty interesting responses to questions about Brown itself, but also Dobbs and Obergefell, the 2015 Supreme Court decision legalizing same-sex marriage nationwide. So what are these nominees saying and why should we be so concerned?

Josh Ortner Yeah, I think what’s interesting is this sort of goes back to the question of what is this, how do we read what they’re saying in political terms? Because I think that’s the sort of the decoder ring that I think we have to apply here because you’re seeing that unlike the first Trump term, the nominees are willing, are more willing, and I think Rebecca Tabelson is sort of a good example of this for the Seventh Circuit, who is willing to say that Brown v. Board was not just set a law, not that she would apply it, but she was actually to… Willing to affirm the principle behind Brown v. Board that separate can never be equal. But then when they got to the questions of gay marriage and that jurisprudence in the Bergefell, then the sort of, it switched to the hedge of, well, I’m willing to faithfully apply settled Supreme Court precedent. And you know, Senator Blumenthal sort of needled on this question quite a bit, especially with Rebecca Tableson and said, well, what’s the difference between one and the other? And of course she couldn’t give one. But I think- that’s when you sort of apply the sort of a political decoder ring, which is that these nominees, you know, they, I think the Trump administration and their base realize that, you know they’re not going to score a lot of political points or at least their sort of political base isn’t so much worried about a nominee saying that, okay, you know, separate, separate but equal is going to fall. But I think they do have to sort of make, you know the argument to their base to their far right, you Donors. That they need to at least show that it’s possible that gay marriage as a legal proposition would fall under their term. Now, I’m not sure that they’re actually, they think it’s going to happen. But I think that line, which I think was created, I think in the second Trump administration, tells us what the Trump administration sees as an important message to their base and to their donors, and that is, we got rid of abortion and we’re leaving the door open to overturning gay marriage.

Leah Litman So as nightmarish as this all is, somehow not all of this has concerned all of the Senate Democratic caucus. A fair number of Democrats, as you noted, have voted for the Trump 2.0 nominees. I guess, do you have a sense about why that is or what on earth is going on here?

Josh Ortner None of my answers are not cynical.

Melissa Murray That’s okay, um, this is a cynical podcast.

Josh Ortner And they sort of just run the gamut of cynicism. I think on one end I think that these senators sort of see themselves and sort of self-style themselves as on some level bipartisan. And so they’re looking for opportunities to vote for a conservative nominee or a Republican nominated lower court judge so they can sort of. Go around and talk about how they, you know, voted for bipartisan nominees. You know, another possibility is, a lot of this is log rolling, right? Like I was on Senate Judiciary, I worked in the Senate. Like, you they trade, you Know, senators trade sort of support for nominees based on the stupidest reasons in the world. Like, well, I have a donor who worked at this law firm and their partner is up for nomination or whatever else. And so they’re all bad reasons. I think one of the interesting things here is that I think they are still under the illusion voting in a bipartisan way for judicial nominees is somehow helpful to them. And what I think is interesting, and I sort of made this point, is first, I think there is really no moral, political, or historical reason to vote for any of these nominees. I think that especially on these two grounds, on January 6th and refusal to admit that Trump lost the 2020 election, there’s no, in political terms, there’s not gettable voter that believes that Trump won the 2020 elections, and so… Saying you voted against them for those two reasons is not going to lose you any votes. I would argue that no matter why you voted against Trump nominees, it wouldn’t lose you votes in the first place, but especially on those two matters. But I think also we have to sort of step back and I sort of give this historical warning for them. Imagine, you know, I think the analogy that I was thinking of with January 6th is imagine 30 years ago, if a federal nominee was asked sometime in their history or even in a Q of R or live hearing, if they were asked what Timothy McVeigh did in Oklahoma City, and they were unwilling to say, he bombed the federal building, right? Like, there is not a, I hope, in the sort of Jeff Sessions era of Republican Judiciary Committee members, and maybe I’m thinking about this through Rose-Colored glasses, but I don’t think really they would survive a Senate Judiciary committee hearing, and to speak disparagingly about the American Bar Association for a moment, I don’t think they would rate them as well-qualified either, and so I think there’s a real danger here with. Everyone sort of, and it’s Senate Democrats, Judiciary Committee Democrats, the ABA and others, looking way too narrowly and sort of not seeing the big picture of how the Trump administration and Senate Republicans are essentially moving the goalposts of what is a qualified nominee. And rather than sort of planting their feet and saying, if you are covering up or if you’re not willing to rebut the president on the overthrow of an election, you are not qualified for the federal bench. Instead of looking for a reason to confirm them, I just think in 10 or 20 years or more, these are gonna look like really, really foolish votes. And I think in the short term, there’s a big base of voters out there who when they sort of are aware that, look, just like, because you supported crypto or because you spent a couple of years at a firm, that doesn’t mean that you’re, I mean, even absent these questions, the crop of nominees, as you’ve pointed out in Trump 2.0 have gotten worse to begin with. But even with these questions, I just don’t think, I see no grounds to vote for any of these people. And I think that Senate Democrats, you know, they try and, they look for reasons to be bipartisan. And I Think as sort of the, to hit on the theme here, they need to sort of accept that the politics is the reality and that the Trump administration is nominating people for political reasons. This process has become politicized. The Republicans got there 20, 30 years ago. And to sort of imagine that you can exist in this world where these nominees are qualified or not qualified based on their jurisprudence or their behavior is just, it’s false. They have to accept the premise that these have been politicized and need to stand their moral ground to vote against them.

Melissa Murray All right, I’m just gonna say it’s my New Year’s resolution. I’m gonna stay focused on the court. Oh, wait, I am already doing that, so that’s fine. And you’re going to keep doing that Josh. So we just wanna thank you Josh Orton of Demand Justice for stopping by for this first episode of 2026. What a way to get started, thank you.

Josh Ortner Thank you and Happy New Year.

Kate Shaw Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Litman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell, Michael Goldsmith is our associate producer, Jordan Thomas is our intern, audio support from Kyle Seglin and Charlotte Landes, music by Eddie Cooper, production support from Katie Long and Adriene Hill, Matt DeGroot is our head of production, and thanks to our digital team, Ben Hethcoat, Joe Matoski, and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com slash at Strict Scrutiny podcast. If you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us, it really helps.

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