SCOTUS Kills Independent Agencies, Expands Presidential Power

The Trump administration's excessive Christian nationalist rhetoric is only building as we move toward the 250th anniversary of the Declaration of Independence. Those most caught in the cross-vier are federal workers. Specifically, a multi-faith group of federal employees who have filed a new lawsuit against the U.S. Department of Agriculture for violating the separation of church and state and the religious freedom promised in our Constitution. Our friends at Americans United for

separation of church and state received emails from multiple USDA employees. A handful of employees reached out to say that the proselytizing Easter emails sent by Secretary of Agriculture Brooke L. Rollins to more than 100,000 USDA employees is an abusive power that violates the separation of church and state promised in the first amendment. They're absolutely right. I just have to remind you, as we continue to think about the nation's 250th anniversary that the whole

question of religious freedom is not solely about religious pluralism, about different religious sex being able to flourish in the United States. It is also a hedge against tyranny. The idea that religion provides alternative sources of values and allegiances that, in view, the individual with the capacity to be skeptical when the government comes peddling its own orthodoxies.

So, when you think about this, it's not just about letting a million flowers bloom. It's literally

about keeping limited government in place. And the hits just keep coming from this administration. And Americans United is doing their level best to keep up the fight against Christian nationalism.

“And if you want to help head over to AU.org/cricket to learn more about their work and how you can get involved.”

It's no joke. But when I argue, man argues against a beautiful lady's like this, they're going to have the last word. She's small, not elegantly, but with unmistakable clarity, she said, "I ask no favor for my sex." All I ask of our brethren is that they take their feet all far next. Welcome back to Strixheartening. Yes, it is a two episode Monday because the Supreme Court has just

decided that no matter how much power they have given to the president or maybe just this president,

it is still never enough. We're your hosts. I'm Kate Shaw. I'm Lea Littman. And Melissa is currently

on a plane doing her level best to scramble here to tell John Roberts to pound sand. So, just wanted to give you a heads up in case she is able to make it and get into this recording. We work over time because the court makes it as difficult as possible. She's personally piloting the plane to get here because she didn't offer to do so. And speaking of bad decisions, today we got some big bad ones, including ones that give Donald Trump the power to control agencies that have historically been

independent from the president. Except, of course, the independent federal reserve board because of the economy and reasons. And if you think that's an exaggeration of the court's analysis,

“I think you'd be wrong because OMG, they basically admitted. And yes, we are, of course, talking”

about the opinions in Trump versus slaughter and Trump versus cook, where scotists part in the puns, but we just can't avoid it slaughtered. It's president, cooked Congress, and handed the president, the power to fire the head of every independent agency and commission, ending the existence of independent agencies. But wait, there is an important exception and that is the fed. Because, you know, like somehow the press leaves it TK in a draft that gets published because

TK insert economic reason here, that is basically the distinction the court doesn't even particularly

try to offer between the big win for Trump, six, three in slaughter. And the loss ish for Trump, but maybe long term win for the political fortunes of the Republican Party in Cook, five, four. Both decisions were written by noted institutionalists and maybe civil war, cost player, and maybe on the side of the Confederacy Chief Justice John G. Roberts. We'll explain that remark, don't worry. Andrew Johnson just jumped off the page and that opinion will not believe it

when I got there. We will explain. But little more kind of introductory material. First,

“slaughter as we have, I think, been already signaling is a hugely consequential decision. It is a”

massive redistribution of power and sort of completion of this slow accretion of power over the federal administrative state and its vast regulatory powers into the president. And so

we will cover the decisions in Trump versus slaughter and Trump versus Cook, and then we will briefly explain why you do not. Under any circumstances, have to applaud the court for its decision in Cook or for its decision in the absentee ballot case, Wadshan versus RNC. So justices,

start your engines. It's an ordinary day at one first street, which means it's time for these

six to three right-wing supermajority to shred some longstanding precedent and keep working on the conservative legal movements wishlist. First up, Trump versus slaughter. This is a big win for

“Trump and a big loss for the public and also for Congress. Remember that time we alluded to it”

actually on the other episode we released today when Pundits were peddling fanfic that what the court was actually doing was empowering Congress. I mean, it's unclear that that take is holding up particularly well in the face of slaughter which overturns the near centuries old case, Humber's executor that facilitated modern governance by allowing Congress. And we should say Congress with the signature of the president. Yeah, over over many many decades to create independent

agencies and empower those agencies that are a critical part of the contemporary federal

administrative state. And for once, the president was onto something over at true social like even the president gets this, where he posted, quote, to show the importance of the slaughter case, 90 years of precedent has been all caps completely and unequivocally overruled, greatly increasing presidential power at a time when it is most needed. Most needed? What are you planning to do? Is he envisioning firing the entire federal government in a year or two? I just I don't know.

All right, but most needs in the court has he has been so constrained. And that is the thrust kind of of the opinion which is the big separation of power's flaw that we have all been afflicted by is insufficient attention to presidential power and excessive permission of checks on presidential power from, you know, these pesky independent agencies from Congress deciding to give some

officials a degree of insulation from the president. Like that is the most critical separation

of power's problem of the day and the court has in its infinite wisdom now solved it. So the basic

“holding of slaughter is that the president has to have control and essential to that control”

is the power to remove or fire any officer exercising significant executive power. And because according to the court all agencies, even the ones we have long understood as independent, exercise significant executive power, the president has to be able to fire the heads of those agencies even where Congress has passed and presidents have signed laws that say otherwise and that also these laws by their terms insulate agency heads from presidential removal. None of that is

permissible under this court's vision of the separation of powers. So a big question that the case leaves very much open is does this rule also mean the president can fire line officials within these agencies, not just the heads of these agencies, individuals who are part of the career civil service if they work at agencies that exercise significant executive power. It is wild that they

“are silent on this question. At least in the earlier cases that are sort of the foundations”

of building blocks that lead to slaughter, the courts that we're not touching, the civil service today, the silence I really fear speaks volumes and it is clearly an invitation to more litigation to fill in some of the gaps and to kind of demarcate the boundaries of this decision. But I fear it is just incredibly expansive. Yes, while they left that unclear, the justices did make perfectly clear that Humphrey's executor the near centuries old case in which the court

appalled, the statute governing the federal trade commission that the court invalidated today, the decision that said Congress was constitutionally authorized to insulate certain officials from presidential control and removal in order to form independent and expert agencies. That case is dead dead dead dead. Yeah. Now, it is not entirely clear from the decision whether the case is dead dead dead because it has already been overruled, maybe in the court of history,

maybe being left in a lock box at a fire station or if it's dead because the court overruled it today in slaughter. The court said kind of one up both basically said the framework has not stood the test of time and if anything more is left of it, then the court overruled it. So it can't even make up its mind about whether it is acknowledging the overruling that's already occurred or affirmatively overruling today. It sort of tries to have it both ways.

Regardless of whether Humphrey's was already dead, project 2025's goal of getting rid of

presidencies. Mission accomplished. They can go ahead and check that one off the list. Yeah. And it's been a busy day on truth social for Trump because in addition to the truth post that we already read, he also just kind of wanted to make sure that everyone knew that a lot of people including John Roberts when he was a young lawyer in the Reagan administration have been trying to end Humphrey's executor for a long time. But only he, Donald John Trump, was actually able to do

it. As he wrote in this truth, social post, quote, "this decision was long sought by United States presidents, dating all the way back to the 1930s." It is... You gotta read it, Kate. You're gotta read it. It is such an honor to be the sitting president who won this historic and

“unprecedented ruling. One of the most important ever given with respect to presidential powers.”

Thank you for your attention to this matter. He's literally like I accept this award in honor of

FDR, Ronald Reagan. This is the greatest piece prize like the FIFA prize. Yes, he's finally won it.

And he's very, very proud that it is, that it is, that it is he who has done this. So this is another benefit of stacking the Supreme Court. Not only will they give to you immunity, which of course they did just over, almost exactly two years ago before he was even back in office, but they will also hand you wins that no court has ever had the audacity to attempt before. As we mentioned, product 2025 called for Humphrey's to be overruled. And this seems as good a time as any to remind

you that product 2025 was spearheaded by the Heritage Foundation. In recent years, the Heritage Foundation has expanded beyond the Imperial Judiciary, which it helped to construct to just straight up empire. So despite the fact that its brand symbol is the Liberty Bell, the Heritage Foundation has been offering some pro-monarchy content just in time for these semi-setsk with Centennial. On its website, Heritage offers commentary that is titled, quote, "An American Defense of

Britain's constitutional monarchy," or to Washington, and the soldiers at Valley Ford, would like a word. Heritage even hosted an event called, quote, "the Crown Under Fire." While the less campaigned a cancel, the monarchy and undermine a cornerstone of Western democracy will fail. The monarchy material, in this opinion, was just so unhinged. There was this like this logic that I just struggled so hard to follow, but it was basically, it is actually the founders

“they wanted to throw off a monarchy. And the only way to guard against a monarchy was to have this”

super powerful president, like they literally basically say that it is good for the separation of

powers and it will keep us from having a monarchy with only a, quote, single person. That is like a powerful president can produce the vigor and activity necessary to preserve the Constitution separation. Yeah, no, they're lessening as basically, like George III may have been onto something, and the founders were too woke. Yeah. So obviously, those guys were on board with overruling hungry's executor. And as just as much of my or observed in a very powerful descent that she wrote,

joined by Justice Kagan and Justice Jackson, the court gives the president a power unknown even to the English crown against which the founders revolted elevating him above his once co-equal branches. Okay, let's walk through the reasoning, such as it is, and then also talk about the implications of the decision. The reasoning I think boils down to just this is the ultimate triumph of the unitary executive theory. The idea the president has and must have under a correct understanding

of the Constitution full control over the executive branch, including administrative agencies that you've just just wrote the opinion, because of course he did and under that opinion, broad, illimitable removal authority, even though nowhere to be found in the text of article 2 or anywhere else in the Constitution is authorized and compelled by the notion of executive power and the president's duty to take care that the laws be faithfully executed, somehow this unwritten

but necessary power to fire kind of as critical to the full realization of those constitutional

authorities. So on this telling members of the executive branch aren't really independent, they are just there to assist the president who is the head of the executive branch and in order for the president to remain accountable to the people, he has to have the power to remove those members of the executive branch, quote, "if they are not performing well." Like we said, reasons. There's this vision of like the boss president, like daddy's slash boss that like

emerges here. The president, there's this quote that I want to read. It's only when the president has complete control over those who assist in executing the law and Robert's rights can the constitution, quote, "live up to Justice James Eredell's boast that the president would be

“personally responsible for everything." Everything, like really, that's what you mean the constitution.”

Okay, so I was gonna highlight that quote later on because it's like, okay, you are calling Donald Trump

to Libya, his administration doing that and he was basically like you'll have to ask homeland

“security and he's done that on a host of things. Absolutely. It's a preposterous proposition”

in general terms and it is laughable in the context of this, you know, I don't know, I ask somebody else president whenever anything inconvenient is put to him. So as we have already said to get to the conclusion that the president has to have this authority to fire anyone and everyone the court had to overrule Humphrey's executor and to kind of do that in addition to sort of this hedgy, either we're overruling a now or we already did and we just didn't tell you then,

but we're telling you now, Robert's maintains in part that the FTC in 1935 when Humphrey's executor was decided is totally different from the FTC today. Then, according to Robert's, the role of the FTC was quite limited and FTC commissioners were, quote, neither political nor executive, but predominantly quasi-traditional and quasi-legislative and today, the FTC exercises this broad and very different authorities and thus must be under complete control of the president.

So that was that effort. You know, another sort of argument maybe in the alternative seems to be that Humphrey's executor anyway is kind of part of the anti-can and right these decisions that we have sort of all come to realize were fundamentally flawed in consistent with core constitutional principles. And he tries to liken the current court to essentially the New Dealers writing of Humphrey's executor, the court said that, quote, "On a day, the New Dealers would do black Monday,

the court ruled unanimously against the president." If you wanted any example of how this court can't do history, this would be it. They have learned all of the wrong lessons from history. The court during the New Deal was bad because the court was striking down congressional statutes and reordering the separation of powers and federalism in the court's preferred image to advance an ideological agenda. And in the process, the court was hamstringing,

government from solving people's problems with practical solutions. Does any of this sound familiar John Roberts' pot meet court Kettle? Starts here at Newsbrought to you by Zbiotics. Living in a big city means that your life revolves around dinners, birthdays, rooftop parties, rins and repeat on and on again. Living in a city also means that you probably have real responsibilities because you are a real adult. The way I keep it all

balanced in my real adulthood, making sure my first drink of the night is Zbiotics pre-alcohol.

Zbiotics pre-alcohol probiotic drink is the world's first genetically engineered probiotic. It was invented by PhD scientists to tackle rough mornings after drinking. And here's how it works. When you drink, the alcohol gets converted into a toxic by product in your gut. It's the buildup of that by product, not dehydration, that's to blame for your rough days after drinking.

“Pre-alcohol produces an enzyme that breaks down the by product. So just remember to make”

pre-alcohol your first drink of the night during responsibly and you'll feel your best the next day. My job is pretty intense during the week and on Fridays. I like to gather with my lady friends and maybe have a cocktail or two. The only problem is I still have to get up on Saturday morning and do by thing. Pre-alcohol helps me to do that. I make pre-alcohol my first drink of the night. I have a little sangria. I go home. I wake up. I can do it all again. I'm fresh as a daisy and

ready to go. Pre-alcohol has become my little insurance policy before a night out. And you can make it your insurance policy. Just head over to zbiotics.com/stripped for 15% off

so you can try it for yourself. And it's never been a better time to try it because everyone knows

July is packed with barbecues, fireworks, lake weekends and late nights with friends. So keep the good times rolling into the next day. Drink zbiotic pre-alcohol before you go out

“and wake up ready for whatever your Saturday or Sunday brings. Just remember to head to zbiotics.”

.com/stripped and use the codestripped at checkout for 15% off. Stripped here needs brought to you by one-skinned. We've talked before about why one-skinned really stands out as a skincare company. It's not just hype or fancy packaging. It's real science. The founding team at one-skinned are longevity researchers who asked a deceptively simple question. If many visible signs of aging, like wrinkles, fine lines, and the loss of elasticity are driven by so-called zombie cells,

what if you could just actually reduce those zombie cells to slow the aging process instead of trying to cover it up? That research led to OS-1. One-skinned proprietary peptide. It's the first ingredient proven to switch off those damaged senescent cells, actually slowing skin aging directly

on really easily. It's light and it works. Making sure that my skin is protected no matter what

“I'm doing outdoors or whether I'm driving around with my face to a window, I know that I'm”

protected. And if you're not using sunscreen daily, one-skinned face SPF is the best place to start. It's got those same skincare benefits from the OS-1 peptide, but it also gives you mineral SPF protection from UV exposure, which is a huge factor that makes us look older faster. So with this product, you're actually protecting yourself from future UV damage while reversing the visible effects of past summers full of sun. Once-skinned results are backed by four peer-reviewed

clinical studies, over 10,000 five-star reviews, and they've been recognized by Bloomberg as a leader in skin longevity. You really don't need a complicated routine to get healthier, younger, looking skin. Instead, just go to one-skinned. Born from over a decade of longevity research, one-skinned OS-1 peptide is proven to target the visible signs of aging, helping you unlock your healthy skin now and as you age. And for a limited time, you can try one-skinned with

15% off using code strict at one-skinned.co/strict. That's 15% off, one-skinned.co with the code strict. And after you purchase, they'll ask you, where do you hear about us? Please support strict scrutiny by letting him know that the ladies at strict scrutiny helped you in your skincare journey. This episode is presented by Planned Parenthood Federation of America. If you listen to strict scrutiny, you already know. This administration, this Congress, and these courts have spent the last few

years making it harder to get healthcare in this country, and it's patients who are paying the price. Take the Supreme Court. The Supreme Court paved the way for states to exclude Planned Parenthood health centers from state Medicaid programs in Medina versus Planned Parenthood. This undoubtedly violates patients' rights to get care from quality providers that they choose. At last year, the Trump administration and Congress defunded Planned Parenthood, trying to shut down

Planned Parenthood and block patients with low incomes from accessing birth control,

“cancer screenings, STI testing, and more. That's why Planned Parenthood is fighting back. But”

fights like these take resources and supporters just like you. No matter the size, your donation makes a real difference. Helping Planned Parenthood meet this moment and protect patients access to care when and where it matters the most. If you believe that all people should get healthcare, no matter their income, donate now at PlannedParenthood.org/defend. So, to justify their great new Unitary Executive Theory, the Supermajority goes all in

on something they've done before, but sort of reaches new heights in this opinion, which is elevating, Chief Justice Taff's opinion for the Court in Myers versus United States, which struck down a restriction on the President's power to remove a postmaster. So, as I said, the opinion in Myers written by the Chief Justice who is also a former president, William Howard Taft, Roberts refers to

“it as a scholarly opinion. It is long. Like, I think we can all agree on that, but it is mostly like”

historical fiction. If you're talking about scholarship, I will just interject here that Professor

Andrea Cass at Washu has written some amazing work on Myers, including a recent sub-stack piece,

and also I think makes a terrific point that Taft says a bunch of things in the Myers opinion, some cherry-picked statements that Roberts luxuriates in in this opinion, and then some statements pointing in totally different directions, like the civil service is clearly protectable from the President, but also Taft when he was the President wasn't a Unitary Executive at all. So, Taft the President and Taft, like the author of this tone, actually were pretty different,

but of course, that scholarship and tons of other scholarship poking so many holes in both what Roberts says about Myers and also what Roberts says about the drafting of the Constitution

and the so-called decision of 1789, which on Roberts telling basically conclusively results of the

President has to have the total power to fire everybody, which is very much not what happened. None of that scholarship really gets any treatment in the majority opinion. It's just completely overlooked. Yeah, no, his is also a scholarly opinion. It's long and contentless. It's just, you know, brief report on the decision of 1789. That's just a reference to some statutes that Congress passed setting up some departments. And in those statutes,

they debated the President's authority to remove these officers. And the idea that those statutes somehow represented a conclusive determination about what the Constitution required is insane. People went into those debates not even realizing that this was going to be a

pointed in different directions. It is just an insane reading of history. And somehow Roberts

“makes all of this even worse on Myers because he goes on about the historical pedigree of Myers”

by going all in on the lost cause. This is the part where Kate and I were saying, we gasped when we got to the references to Andrew Johnson. Because the lost cause is the movement that emerged during reconstruction that was anti-reconstruction to depict the south as fighting for this cause and that the north was just so mean and overreached and harsh to the south that the south was actually in the right and the north was in the wrong. So why does this opinion channel the lost

cause? Well, Roberts writes that in the wake of the civil war, quote, "Congress sought to reverse

this constitutional construction," he's referring to the president's power to remove officers.

And quote, "This reversal grew out of the serious political differences between President Johnson and congressional Republicans." And then he goes on to talk about the tenure of office act. Let's again just explain this in plain English. Andrew Johnson was a Confederate sympathizer. The reconstruction congress controlled by Republicans didn't want him to end reconstruction. And so they limited his power to fire the generals who were deployed in the south to try to make the south

a multiracial democracy. That is the tenure of office act. Like literally generals blockhaided themselves in their offices so that Johnson couldn't fire them. And according to Roberts,

everyone recognizes Johnson was right and that the law was obviously invalid. It's just insane.

Yeah. And specifically like the dispute that actually leads to Johnson's impeachment and near removal is his violation of the tenure of office act. And by trying to fire without Senate consent, the Secretary of War at Stanton. But there's also this completely unignalaged distinction between what the law and the tenure of office act and in Myers did. And what a law like the FTC act does, which is those laws required the Senate to consent before the president could

“remove someone, which may be a different, which is clearly, I think a different kind of separation”

of power's problem than any separation of power's problem that might exist, such as it is, with just saying the president has to have reasons before firing someone. So there's just an enormous difference, even if you think the tenure of office act had constitutional problems. It's very different from the FTC act and the other statutes that congress has passed and that the Supreme Court in this letter's decision has now said are constitutionally intolerable. But there's also just like,

again, there's all this tonal stuff in this opinion that is so insane. Like, again, there are people I think who are not sympathetic to Andrew Johnson and his anti-reconstruction agenda, who say yes, congress shouldn't be able to give the Senate a veto over the president's firing of a cabinet secretary. Like, that's not a crazy position. But the tone of sympathy that

“the opinion of Vince's toward Andrew Johnson is really wild. And that I think was what I found so insane”

as I started to read the opinion. So here just like to connect this, that passage we have just been talking about to other decisions issued in the past few weeks. Remember how Alito and Barrett were like, pearl clutching about the complete impropriety of relying on the kind of redemption era statutes, black codes in Louisiana that were offered as historical analogs to justify the Hawaii gun control law that was at issue in the Wolford case. No such energy on display in pointing to

Andrew Johnson's efforts to end reconstruction. And they're clearly also very offended by congress's efforts to try to thwart president Johnson. And it's just a little hard we're talking about the same period of time here and entirely different Supreme Court treatment of these historical episodes. Yeah, what it is is absolute boss level, southern grievances, you know, by Jim Crow John Roberts and it's just wild. Yeah. So part of their reasoning is also

continuing with their fetishization of executive power and how that's great for democracy. If you heard that sentence and you thought what, I too had that reaction wondering if the court has been hibernating for the last 18 months. It really, again, like this is what you think the problem is John Roberts. I mean, so on the eve of the Fourth of July, America's 250th birthday, it does feel like this is it let's go all in on making America a monarchy again, make it

America a monarchy like the new acronym. And like so many things that they have the goal to do with the straight phase, they are justifying it in terms of democracy. Like that is what they did in

executive branch from congressional oversight and congressional control isn't great for democracy or

accountability, no matter how many times they somehow suggest that it is. And in any case, even if you're actually concerned about accountability, there is still plenty of accountability. Even when agency heads are somewhat insulated from presidential control, a point that just as so tomorrow underscore repeatedly in her descent. Okay, we want to spend some time talking about the implications of this decision. So they have doubled down on their unitary executive theory, because

clearly it has gone so well in the last few months that theory was an issue in the immunity opinion.

“I think we at the time two years ago we thought like this sort of is the culmination of the unitary”

executive and then came the 18 months of the Trump administration, which I think were an illustration

that you can go much much further on the unitary executive than that decision did. So here the

implication of the theory really is that Podis was already beyond the reach of the criminal laws in the immunity decisions. He is now above or beyond laws that might constrain what the court deems to be his executive powers, you know, which is kind of concerning when you're talking about a president who hasn't been particularly shy about law breaking. And the justices have handed this president more power to control agencies. When we have seen how agencies subject to his control

have acted, you know, the Department of Defense has awarded contracts to companies that are linked with his family contracts are given to companies that are on the ends with the administration. Their merger approvals granted to companies that have bent the knee, favorable settlements,

“are reach with companies that are favored by the administration. I think that's part of why I view”

this as a pro-corruption ruling and that this decision should be understood as part of the Supreme Court's commitment to a re-guilded age of robberbearance. Yeah, it does feel like an important sort of step on the road to reinstituting the spoil system, a patronage system, a government where government offices are awarded, not based on merit or expertise or competence, but personal favors, political loyalty, you know, what campaign contributions you gave, what rallies you attended,

and this is how you get a government run by incompetent blowhars and also incredibly conducive to corruption. So both incompetent and corruption were on display in the era of the spoil system, and that is what we are on a path back to. You know, L.C. opinion decides that might be a good idea to go ahead and sort of approve of loyalty tests. Like those are maybe on the logic of the opinion good now, Robert's rights quote to discharge the duties of his trust the president must have

the assistance of officers he can trust. So maybe those are now fine. And that is all to say nothing about implications in future cases. So as we said, the court doesn't say anything about the civil service, just so to my own notes in her descent that the court suggests that it's new fangled rule might not apply to a judiciary agencies, including non-article three courts like the tax court, but it's unclear why, and then is again, you know, nothing in the opinion about

not just civil servants, but also inferior officers whose removal protections have been upheld by the court's prior precedence, but unclear what this opinion means for those. So as just as such a myor wrote in the descent quote, the majority replaces 90 years of proven workable practice with a half-baked theory of executive power that is simultaneously all encompassing yet also subject to necessary but undefined exceptions. Okay, let's maybe say a quick word about

the gorsage concurrence. And here I will confess when I started reading the gorsage concurrence. I was like, oh, I actually maybe he's got something sensible and reasonable to say because he starts off by observing, you know, Congress created all these agencies and gave them all these broad powers. And I don't think they thought that the president was going to have complete control over these agencies. So for a minute I was like, whoa, am I going to agree with something? Yeah,

this takes it to the crazy place. I mean, of course, into like the under Roman one, it was like, oh my god, of course, this is like an air go. We should just completely dismantle the administration of state. So let's kind of revive non-delegation in addition to empowering the president. Like literally, this is his opportunity to fully make good on this promise he may be made to his mother at one point as a boy, which is we're going to abolish the administrative state and you

will be avenged. So we have all that to look forward to.

Strix Newton, he's brought to you by Lisa. My annual spring reset always starts with good intentions.

“But this year, I actually followed through on something very important, replacing my old mattress.”

I just switched to a legend from Lisa for a legend like me. And it's been a much needed change

Actually, forgot what it felt like to get a good night's sleep. Well, Lisa has reminded me,

Lisa has a lineup of beautifully crafted mattresses that are tailored to how you sleep. From night one, you will feel the difference. Premium materials that deliver serious comfort and full body support no matter how you sleep. Just take the Lisa's sleep quiz and you'll find your perfect match in less than two minutes. And getting a Lisa couldn't be easier with free shipping, easy returns and a 120 night sleep trial. Plus, Lisa is a choice that you can actually feel good about.

Lisa doughnates thousands of mattresses every year to families in need and they partner with organizations like clean hub and greenworms to help remove harmful plastic waste from the environment.

“So if you want to get a better night's sleep and make a difference, just head over to Lisa.com”

for 30% off select mattresses. Plus, you can get an extra $50 off with promo code strict, exclusive for strict scrutiny listeners. That's leesa.com promo code strict for 30% off select mattresses plus an extra $50 off for strict scrutiny listeners. Support strict scrutiny and let Lisa know that we sent you for a good night's sleep after checkout. That's leesa.com promo code strict. Strict scrutiny is brought to you by Slowburn. Slowburn, the award-winning narrative series

from slate is back with a new season and it feels like one that was literally manifested by the ladies of strict scrutiny. Becoming justice corsage. That's right. In this season, host and slate executive producer Susan Matthews traces Neil Gorsuch's formative years from his mother's rocky tenure in the Reagan administration to his coming of age as a young

“conservative in the 1980s. She'll lead you through his legal philosophies and his controversial”

nomination to a stolen seat on the high court. And she'll shed light on a man who many Americans can't even identify in a lineup but who has nonetheless played a major role in ending affirmative action, limiting abortion access and upending voting rights. Featured in this season are friends of our podcast, Dalia Lithwick and Mark Joseph Stern, the host of Amicus, Slates podcast about the courts. They break down how Gorsuch fits into the current court where he's going next and why

he never took his job on the court's cafeteria committee very seriously. As you all know,

the Supreme Court's end of term is upon us and this is the perfect podcast to learn why justice corsage is such an unpredictable vote and to round out your understanding of this Supreme Court. Listen to the entire season of slow burn becoming justice corsage now on Apple Podcasts Spotify or your favorite podcast app. So despite telling us how awesome presidential control is for democracy, for accountability and for the execution of laws and how the constitution

requires the president to have the power to remove executive officials and this is a direct quote, "No ifs and/or quasi's about it," the Supreme Court also said, "unless we're talking about the federal reserve for it and our 401k's." Right, so that's Trump versus Cook in which a bear majority of the court, in an opinion by the Chief Justice, held that Federal Reserve Governor Lisa Cook can keep her job while she challenges the president's attempt to fire her via a true

social post, which is actually how he tried to fire her. We have joked about how the court's reasoning, that is like scare quotes reasoning about why the president can control and fire the heads of every

single independent agency except the Fed. Basically came down to something like but the stock market,

but my investment portfolio, but my emotional support billionaires. And today, John Roberts may have made that subtext to the text. In a kind of OMG he admitted moment, John Roberts wrote in Cook, quote, "We see no reason to leave the public in limbo or to sew doubt as to the status of one of

“our nations and the world's most important financial institutions." He offered that as a reason for why he was”

in this opinion, addressing several issues in the case that the lower courts had not reached, including the constitutionality of the provision that limits the president's power to fire governors of the Fed. Two occasions where the president has caused for firing them. Shorter John Roberts, like it might be okay to mess with consumers, which is the group that the Federal Trade Commission seeks to protect, but it's definitely not okay to mess with me and my stock portfolio. We call this,

maybe the independence we care about doctrine, like agencies get to be independent when we Supreme Court decide they should be independent independence for me, but not for thee, like Trump can wreck the separation of powers, maybe also the rule of law, but not capitalism. Totally. And the opinion in Cook focuses on rejecting the three arguments that the Trump administration had made.

dispatches in the last week, so there was an argument that the president's decision to fire someone

“for cause was not traditionally reviewable. Roberts rejects that argument, says no, because if it”

wasn't traditionally reviewable, then the legal protections and statutes would be meaningless. Note, and this is what I was just referring to, that the same argument did not seem to move him in the TPS cancellation case where Roberts signed on to Sam Alito's opinion saying that courts could not review whether the president complied with laws governing the TPS termination process. So those can evidently be rendered meaningless, but not the ones regarding the Fed. Interesting.

In certain economic reason here, TK. So that's the first reason. Roberts then addresses and

also rejects the government's argument that even if the courts can review whether the president has caused a fire someone that review is so differential, it is basically essentially meaningless. So while Roberts rejects that standard, he won't go so far as to commit himself or the court to an actual legal test about how courts should decide whether the president has caused. He writes, quote, having rejected both parties positions, we need not fully

demarcate the contours of cause today. For present purposes, it is sufficient to observe that any definition of cause in this context must reflect the Federal Reserve's unique historical status and role, aka economic reasons, TK. But he also adds, quote, it is true, of course, that cause cannot be reduced to a precise set of rules and some close calls are inevitable.

“I think this part was like just a kind of insert legal test. Right, exactly. That's fair. That's fair.”

You would search in vain for anything resembling one in this draft of the opinion. So instead,

he basically rests his conclusion on the idea that the government won't be able to show that

it can prevail on the merits of this particular case or challenge because the president here failed to comply with the procedural protections to which Governor Cook was entitled by statute, namely basic notice and an opportunity to respond, which were not supplied by the firing via or the purport and firing via truth social. And then finally, and it's also as important the chief rejects the government's argument that Federal courts cannot issue preliminary injunctions

ordering reinstatement and says the Cook is entitled to remain in office while litigation is ongoing. That is to say the court rejects the really expansive argument that the administration had made that Federal courts had no authority to ever order reinstatement. Here, court says Federal courts can issue preliminary injunctions ordering reinstatement. This opinion had a kind of Schrodinger's quality to it because in some ways it was big and in some ways it was small. So despite having

reached several issues that the lower courts did not, the decision was also quite narrow. It does not weigh in on whether the president can fire Cook based on these specific allegations of mortgage fraud. It just says that what is contained in the president's truth social post doesn't fly and can't suffice to remove Cook. And even the president picked up on this on a social media post, writing, quote, "The Cook lawsuit was sent back by the Supreme Court on a strictly

procedural basis. We will take appropriate action immediately to make sure that someone who has committed wrongdoing will not be making vital decisions." In other words, I'm going to keep trying to remove her. Yeah. Yeah, I had sort of hope that this was something that was not even

“they were not going to remain focused on. If they lost in this case and I think it's very clear”

from the truth social feed that they're not letting this go. So, Cavanol also emphasized the kind of narrowness, so Leo is just a little bit again. It's such a weird opinion in that, yeah, like it's unusual for the court to reach out and say a lot of things about big important questions with constitutional dimensions that lower courts hadn't addressed and they did that, but then also that's very narrow and Cavanol does emphasize that in his concurrent saying the case doesn't even resolve whether

Potos can lawfully remove Lisa Cook. All of that he says will depend on resolving factual disputes in the case. Okay, so yeah, this was, as we said, Roberts and Cavanol and then the three Democratic appointees in the majority and then there were three descents in the case, the one was from Justice Thomas, one Justice Alito, Alito was joined by Gorsuch and then a separate one, I think, just for herself by Justice Barrett. Barrett and Alito, fault of the court for doing the

thing we were just referencing going beyond, answering out a bunch of big questions, going beyond, what they said was necessary to say in the case to which the court responded with this interesting passage, quote, "how much to say on our interim docket and how much to say in response to a

dissent is not reducible to any mechanical formula. It is ultimately a matter of prudence upon which

reasonable minds can and often do disagree." In other words, balls and strikes, right? Or I do what I want? Yeah, definitely. So speaking of jokes that are five, four, five, four jokes, we also wanted to briefly talk about the opinion we got today in Watson versus RNC, which is the absentee ballot case.

morning and huge. Yes, like full body kind of deflate, there were so much like anxiety and tension,

“like kind of filling me and then there was a sigh of relief when the court released that opinion,”

because it is five, four, which is a crazy vote, we can get to that, but it says that federal law, and specifically the federal law that merely sets election day does not prohibit states from counting absentee ballots that are cast by election day, but received afterwards. So states can count absentee ballots cast by election day, but received after election day if they choose to do that, Mississippi, the state whose law was at issue here, has this five-day grace period, other states

have shorter and longer ones, the total number, the majority mentions is like 30 states have some version of this. The challenge, if it prevailed, might have invalidated all of those, and here,

Justice Barrett rejects that challenge, says quote, "the election day statutes, the federal ones,

say nothing about ballot receipt, and we cannot add to the words Congress chose." As Kate said, opinion was five-four, I guessed when I saw this, just a bare majority, this court came within one vote of overturning laws and something like 30 states that allowed counting a ballot's mail by election day on the basis of federal election statutes that just are not remotely ambiguous about whether they displace those state laws, and four justices were

okay saying just a few months before the mid-terms, the RNC, the Republican National Committee, gets to dictate, you know, how states administer elections, and whether and when they can count lawfully cast absentee ballots, and just refashioned all election law based on their own views about what proper voting looks like and arguing without any evidence that voting by mail leads to voter fraud. As that summary of the reasoning in the dissent might suggest, the dissent

“was written by Sam Alito, whose brainworms, I think, really seem to have gotten worse.”

I don't, it was so many pages of opinions today, like I now is mostly focused on slaughter and cook. So I have to actually spend a good, like, long session with a stiff drink in the Alito descent, but as I started reading, I was like, the syntax doesn't even sound like a normal one, like, it's just, it's a true, the barrographs are just like, so chopping and weird, and anyway, it's, and also, like, clearly conspiracy theories have taken full residence, like, in his brain

and heart and soul, and he's big mad about, like, vote by mail in general, so all those things like a tell, but again, like, I need to spend a little bit more time with the opinion. But speaking of brainworms and kind of the worsening of brainworms, like, red cavernal also, despite joining, like, sort of, team sanity, all their team sanity with, like, reasoning TK in the cook case, also seems, like, he's getting more and more radicalized, like, this lineup was Barrett, as we said,

for her selfless of three democratic appointees in the chief justice. So cavernal was in descent here, and the descent, as we were just saying, the leader of the send is, like, absolutely nuts. Briefly, maybe on the majority opinion, let's just say a couple of words about it. The reasoning was just that the federal statute set the day for the election. That's the day that the electorate makes its choice, you know, does it by voting? And that's, like, straightforward and obviously

correct, and the tabulating of that vote, or those votes, is something distinct from the choice, and so there's nothing problematic under the federal scheme with those votes being counted, afterwards, along as the choice was made by election day. By contrast, San Molito says if ballots received after election day are counted, then the electorate's choice does not occur on election day, but he says it in a way we're, but anyway, the, that just can't be right,

recounting ballots does not mean the choice doesn't occur on election day. The choice is the voting,

not the counting. So, Molito's descent also ends with the final section that is basically just

screwed against voting by mail, warning that the majority's opinion, quote, "riscs further undermining Americans' confidence in election integrity," and, quote, "leaves open opportunities for voter fraud that may further undermine Americans' faith in the integrity of this country's elections," and he also went out of his way to excuse Trump from having any responsibility for generating said concerns about voter fraud and election integrity, writing that, quote,

even in the absence of partisan rhetoric, drawn out ballot counting induces a large, significant decrease in Americans' trust in elections. It just happens, it just happens organically. It just happens organically. It just happens organically. It is nothing to do with that rhetoric. That rhetoric. Yeah, and Trump was really following the court today in a way he is not usually. Since he also posted on Watson, right, not just Cook and Slotter, writing that quote in

“light of the tremendous loss, it is more important than ever to pass the Save America Act,”

a law that he has been agitating for for months and that would disenfranchise as we have repeatedly mentioned on the show, literally millions of voters. I have just a quick, maybe conspiracy theory

who I can't credit them, but thinking through is it possible that this seemingly sane decision,

“which actually does, as a matter of statutory interpretation, and also kind of structural”

constitutional reasoning. There's like a good passage that suggests that the constitution itself makes a distinction sometimes between a choice and the actual consequences of that choice, like the whole electoral college kind of works that way. The people vote at a certain point,

Congress, you know, counts, opens and counts votes later. That's presidential selection.

As weird as it is, it's that suggests that there's no, like, fundamental constitutional problem with dividing the voting and counting. Anyway, so it seems like a very sane opinion to me. But it could it just be that Barrett and Roberts, if not the other, conservatives on the court, actually realize that the kind of the Trump position that we want to like do everything we can

at the RNC, obviously the plaintiffs in this case, to like discourage vote by mail and other things,

like that's something that Trump really thought and maybe still thinks for downs to his partisan advantage. But it's not that clear at this point that that's the case. And so it's actually a more kind of nuanced appreciation of the kind of, you know, sort of voting landscape and a desire to safeguard the electoral interests of the Republican Party, even if, again, Trump might

“himself be mad about that, like, might that be something of a better behavior. I think that is”

definitely a possibility. We don't exactly know what the partisan valence of absentee voting is, and you will note that even though we don't know that, I still think absentee votes should be counted. But just like there was ideological cross-pressure in Cook where the interests of the Republican Party probably counseled in favor of insulating the governors of the Federal Reserve from presidential removal, so too perhaps here. So just to wrap this up, take homes. You do not

under any circumstances have to hand it to the Supreme Court on Watson or Cook. Do not congratulate

“no ifs and or quasi's about it. Like, the court isn't moderate or moderating. I think it's fair”

to say like they are advancing their own agenda. And the fact that they occasionally do the bear minimum and not the most insane thing just cannot be a justification or apology for their other behaviors. So we will likely be in your earholes again tomorrow, Tuesday, June 30th, which will be the final day of the term talking birthright citizenship or lack thereof. I still think birthright citizenship. Yeah, same. But, you know, we have less than 24 hours to wait and we will bring you

our quick reactions to that, and then we will have our regular term review in your ears on Monday. So, see you soon. Strixertney is a crooked media production. Our show is produced by Malady Raoul and Michael Goldsmith. Jordan Thomas is our intern. Our team include Matt DeGrope, Ben Hethko, Johanna Case, Kenny Mothit, Eric Shoot, and our music is by Eddie Cooper. Our production staff is probably

unionized with the writer's guild of America East.