The Supreme Court’s Assault on Our Rights (with Kate Shaw)

>> Welcome to the Oath and the Office podcast.

I'm John Fugel. We have a great show today. The Supreme Court Guiding the Voting Rights Act. Donald Trump tried to indict James Komi for C-Shell Art. Going after ABC's license and, of course, the Miffapristone ruling and special guest,

you ped professor and co-host of the legal podcast, strict scrutiny.

“Kate Shaw, the only thing that would make it more perfect is the star of our show.”

The professor himself and the author of the Oath and the Office and the President and the people, Professor Corey Brechneider. It's so good to see you. >> Great to see you, John. And there's so much to talk about the destruction of the Voting Rights Act.

Of course, we're going to start with talking about the Supreme Court. There's no way to avoid what happened last week. It is a disastrous moment. But I'm also encouraged because, you know, talking to you every week, makes me laugh, gives me hope.

And we have on the podcast today, and I really hope people will listen, not just to our discussion, but to this interview with Kate Shaw, to my mind, one of the best legal analysts out there, one of my favorite people to talk about the Supreme Court, too.

We've had her other co-host, Leah Litman and Melissa Murray on our podcast. So glad that we'll complete the trio with Kate Shaw. >> Well, the whole story of the host of Strix scrutiny. >> And I'm excited for all of it. I'm really excited to talk about the Supreme Court.

“Finally, cutting the Voting Rights Act even worse.”

But before we get there, I want to begin with an announcement. You guys, the Brooklyn Public Library has released something called 250 for 250. It's a librarian curated list of the 250 most influential books that shape America's 250 year history.

Because I don't know if you've heard, that's coming up. This was selected by two dozen librarians, more 600 candidates. And the list is varied. It's historically underrepresented works.

It's historically iconic works. It's got Thomas Payne's common sense. It's got the autobiography of Benjamin Franklin, the narrative of Sojourner Truth. It's a great list.

The Scarlet Letter by Hawthorne Walden by The Row. Leaves of Grass by Walt Whitman, and what's this here? The presidents and the people by Professor Corey Brechneiter. You wrote one of the 250 most influential books in American history.

Congratulations. Thanks John.

I'm of course humbled to be on a list with such amazing works.

Works that we all grew up studying. And you know, to be included is really an honor. And to be included on this list by the amazing Brooklyn Public Library leader in really in literacy around the country. Of course part of why it's included is tragic.

Because what's happening in this country is that we are facing threats to democracy. But I hope that what readers are getting out of it.

“And I think one of the reasons it might have been picked”

is because in the midst of what really looks like a frightening moment. The book is about hope. It's about the citizens who fought back against previous presidents who threatened democracy and how they won. And it's a guide for our own time of how we're going to fight back

and how we're going to win. And that's of course what we're doing every week is outlining being honest about the threats to democracy, but also giving the audience and listeners and the community that we're building hope.

Well, let's get to it. Because this country right now is being run like a casino by people who've been banned from casinos. Cory, I'm not surprised. The Supreme Court did it again.

This Court's dirty six majority took what remained of the Voting Rights Act of 1965, the Crown Jewel of the Civil Rights Movement. And they beat it with a baseball bat and turned fire hoses on it and sick police dogs against it.

So list of us to crack John Roberts has been years trying to make it harder for black Americans to have representation and government instead of being disparate

for his wife taking $10 million from firms with cases

before him. He has instead stalked the Voting Rights Act for years. We've talked about it. He's been like Inspector Javair going after a John Valjon. In 2013, Shelby County versus Holder.

They destroyed Article V, which made states with historic racist obstacles to voting, followed preclearance rules to prevent discrimination. John Roberts said, "No, black president means no more racism and that led to tons of voter ID laws in the like. But last week, they finally achieved their goal of destroying

the achievements of Dr. King in the civil rights movement. Giving us a ruling that will make proving racial discrimination in redistricting almost virtually impossible. I mean, what do you think of what's happened under section to with the Voting Rights Act?

Many people smarter than me are saying this got set. There's nothing left for meaningful enforcement under section two. Is that overstating it or is that fair?" Well, it is really a tragic moment in American history.

And I'll say, although Clarence Thomas, I think,

honestly, and does say, in this concurring opinion,

“it's essentially gone, the Voting Rights Act section two.”

The court doesn't do that, but instead it hides how badly it has eviscerated the Voting Rights Act. Just to back up, I want to talk about why this is such a tragedy. Please. You know, the 1960s was a moment in which a mass movement

stood up to reclaim rights that were promised in the 13th Amendment ending slavery and the badges and incidents of slavery to guarantee equal protection of law. And maybe most importantly, the 15th Amendment

banning discrimination based on the vote. And the idea was, look, that the Voting Power of Black Americans had just been eviscerated through the courts through various means, like literacy tests and the dilution of Black votes, even when Black Americans

were made it to the polls.

Their votes were turned into nothing.

And so what the Voting Rights Act did was try to make the Black vote meaningful and make it possible to elect Black representatives. And what happened here was essentially that the court made this really impossible both

for states that want to comply with the Voting Rights Act and it's meaning to shape their districts in a way in which there was meaningful Black voting power and it made it impossible to show what this opinion did under the law that there is discrimination based on race.

And I'll say just a little bit more about this. There is a narrow way just to go to your point that the court left to show that there is discrimination when it comes to the right to vote.

“You have to show intentional discrimination.”

Essentially, it's very hard to do that to show that the point of a map for instances to discriminate or dilute Black votes. All that has to be said is that we're trying to create partisan gerrymandering, which the court is okay.

And the mechanisms that had existed before to essentially look at maps and say, regardless of intent, this is deeply discriminatory that process both of litigation and getting the courts to say that

and also of allowing even states that want to create maps that don't discriminate to do so if you're trying to rectify discrimination, you've got to show that the discrimination is intentional. And really, it's a road map to how to dilute Black Americans

votes to destroy Black voting power. Just say it's about party, not about race. And you can mask your intent. And that's going to lead to, I think, just a destruction of districts and voting maps

that allowed for Black voting power to matter. And it's going to lead to a race to the bottom of Republican and then in response democratic districts to simply draw maps that have all Republican or all democratic maps.

This is not a good thing, not only when it comes to race, but for democracy, generally. This could trigger the largest rollback of minority representation since reconstruction. And it's also going to lead to a lot of

Democrats fighting back, which is going to lead to a lot of conservative brothers and sisters, losing representation in blue states, because their districts are going to be eaten up to. And just as Alito, his majority opinion claims section

to still exist, but I'm like, well, technically Blockbuster video still legally exists. I mean, this could be up to 10 majority Black congressional districts of vulnerable, dozens more across state and local levels.

Massive redistricting across the south. Massive redistricting across the rest of the country to compensate for what the south is doing. And Republicans, potentially gaining house seats through remapping alone this year at a time

when they're historically unpopular and projected to have massive losses. Trumpism has taken over the entire party from the Supreme Court on down to the state houses and they are all engaged in the same

massive cheating strategy. So I have to just ask you, they say the majority that Louisiana rely too heavily on race in drawing districts. And I mean, this is crazy because lower courts found that the previous map unlawfully diluted Black voting power

and was unconstitutional. So they were like, "Oh, fix it." And Louisiana tried to fix it. And this courts like, "No, not like that. We like the old illegal better."

I mean, can you explain how this rational is being used to weaken protection for minority voters? Yeah, the court has a philosophy largely of color blindness

“that I think is the only way to understand what's going on.”

Color blindness, white people love saying it. And so-called color blindness. And so in the area of affirmative action for instance, they've said, "Look, if you take race into account of your even conscious of race, then that is evidence

that you're probably discriminating."

And here, you know, they're basically saying,

"If you draw a map with race in mind, even if you claim it's about rectification of racism, you might yourself be, you are likely,

and this goes back to my other point,

“you can show that you're rectifying intentional discrimination."”

In other words, if people hit their racism well, and you're trying to correct it, well, that or even decently, well, that's not allowed. And so this idea of color blindness really is a disaster. You see, most clearly, and Justice Thomas,

and his jurisprudence, and what he essentially says here, which is, "Don't get me wrong." Totally absurd, wrong historically, wrong in every way, wrong politically, morally. He says, essentially, that the 1965 Voting Rights Act,

because it took race into account is largely unconstitutional. I think that's his view, and nothing could be further from the truth. It's an attempt to realize the meaning of the 15th Amendment,

banning discrimination based on race, but at least there's a kind of honesty to that.

You know, it's absurd, it's wrong,

but he's really telling us how extreme his color blind philosophy is. In Elito, leaving up in this lane of rectifying intentional discrimination, it looks like he's being less radical. But it's so hard to show intentional discrimination that it winds up being color blind

and almost the same way, I think, as Justice Thomas would have it. So the court here, and it tends to do this, it looks less radical and what it's doing than it is, that allows pundits and commentators and law professors to say, "Oh, no, you haven't understood.

It didn't destroy the Voting Rights Act, it left away forward, it reformulated it." But the lane is so narrow what it leaves to show intentional discrimination. It's so hard that it essentially eviscerates it.

“And so, you know, that's why this is such a disastrous decision.”

I wanted to say something, you know, to really bring out the history, people died in order to pass the civil rights act, and what we're talking about the 1965 Voting Rights Act, they were beaten, the Pettis Bridge incident.

The movement really was willing to allow America to see violence against black Americans to show how important black voting power was. And by just stepping in here, these Supreme Court justices have undone.

One of the most important moments in democracy,

I'm always talking about the need for citizens to respond. We didn't get voting rights in the protection of it by court order. We got it.

That's right. Through this legislation, and yet here they've come and destroyed it. It really is one of these moments where, you know, I should say in the 1965 Voting Rights Act was the moment where America really became a democracy

in a meaningful-- That's right. And now they've undone that democratic transformation. And, you know, it speaks to their own illegitimacy, the danger of this court.

Yeah, they've had 60 years of America finally being a real democracy, and they've seen where people vote. It's the same reason they're trying this, say that because women have gone for Democrats

since 1992. I mean, it seems like the court is essentially saying it's better if you rig it for naked evil, partisanship than if you rig it to let historically disenfranchise people

have representation. Their standards seems really simple, Corey. If race consciousness helps white conservatives than its tradition, but if race consciousness benefits minorities,

it's unconstitutional engineering. Am I getting this right? I'm trying to understand how John Roberts' mind works. I mean, this is this whole Roberts court project of elevating color-blind constitutionism,

which doesn't exist over race-conscious civil rights enforcement. You know, they have an argument they use for instance Justice Harlan's dissent and plus he versus Ferguson. They believe they say the conservatives on this court and Brown versus Board of Education.

So they're not giving the, you know, who clucks clan playbook or the white supremacist playbook of the 1960s. They are claiming to be on board with civil rights. It's just when they define what civil rights protections are,

what the 15th Amendment and 14th Amendment mean and what the Voting Rights Act and Civil Rights Act in 1964 mean. They construe it in this color-blind narrow way that makes it just very hard to use it effectively. And so in rewriting it in some ways, it's worse than the naked racism

that you sometimes see because they're really taking laws that were fought for by democratic majorities. You know, the point, I mean, just to go to that. But that's where they hate Cory. They say they hate governments.

They love government. They hate democracy. Point democracy. The force of a rights act, for instance, wasn't to protect against racism against white people.

It was meant to protect and rectify the long history of discrimination and that's true of the 1965 civil rights act. One more word on this, John, just to get a little technical. You know, part of it is, and we've talked a lot about the interpretive philosophy of this court.

“But you have to understand the intent of these laws,”

the history of them, to appreciate just how bad what this court is doing is. And yet, it's technique for interpreting them is to narrow to the words, the text.

That's how they eviscerate what these laws really were about.

“So, I mean, I know we have to move on to other things in the world.”

But the scary thing about this, a Lito wrote that older discrimination and the lingering effects of institutionalized racism deserve his words much less weight. Cory, I love it when wealthy privileged insulated conservative white men explain that racism

isn't a problem anymore. But ours, after cutting the voting rights act, Ron, the Santa state it again, that little sweaty authoritarian tribute act, redrew the congressional map to eliminate four democratic seats. He was sitting there,

like a weasel waiting, Ron saw the court gut voting protections, and he has been waiting for this ruling, like a kid on Christmas morning, if Santa was John C. Calhoun. I mean, like, and then we saw in Louisiana,

Governor Landry was so excited to speed-rig it. He canceled the primaries. He punted the house racist, told Nigel I to give enough time for them to draw brand new maps. This isn't redistricting, Cory.

This is racist Photoshop. This is an Instagram filter for democracy called much wider. You know, De Santa's already destroyed Florida's fifth congressional district.

Majority black. Because if black voters can choose their representatives, Ron De Santa doesn't think it's freedom. I mean, what does this decision mean in practical terms for black voters in the southern states?

We're going to see a wave of new maps in states like Alabama and Georgia and Tennessee, aren't we? Yeah.

“I mean, I want to respond to a few of your really important points.”

One is that, yeah, this court does have this idea that, you know, racism and white supremacy is largely left America that we might have needed this law. There might have been a moment of slavery, maybe a little light-dabling and segregation.

But that's it, really. I mean, he has this language, it's just, you know, the voting rights act was very important when it was passed. And, you know, there really was racism in America in the 1960s, but essentially it's all gone now.

And, you know, that's naive. And, you know, it cuts the liberal. It's a little bit of a lead-o and Thomas's blinders to what's going on with Trumpism, to the way the Trumpism, if you listen to Tom Josslin, who wrote the January 6 report and had one of our amazing episodes

with us and talking about how surprised he was at how deep white supremacy ran into the January 6 crowd. That's not something that's being acknowledged by Thomas or Biolito or the looking pastor. And so, you know, their myth that somehow racism is gone is ridiculous,

but also, let's just, they know it's not. They know it's not. They know it's not. Go ahead, please. I just want to pull it out.

The bottom line is, this is a green light to white supremacists.

It's essentially saying, look, in the past, the lawyers might have stopped you from drawing maps by saying it's partisan, but really what you're trying to do is to destroy black voting power, the idea that black representatives might be elected by black constituents. But now we can just go after that.

Don't say it. Don't announce it. Just pretend it's in terms of, you know, partisanship. And so, if white supremacy, it did not disappear, but now it's really being given a green light.

So, Corey, let me get this straight, because you're, you're the smart one here. And I'm, I'm the vulgar Vaudevillian. Race conscious college admissions to address historic discrimination. That's, that's illegal. And race conscious voting maps to remedy historic racial vote dilution.

That's illegal. But race conscious immigration crackdowns. That's okay. Race conscious policing. That's fine.

Race conscious travel bounds. If we put the words national security on it, that's great. Really seems Corey, this court believes America has to become color blind. Only when race is used to help minorities. You know, it helps to explain what's going on here

to take a step back and to look at other areas in which the administration itself

has engaged in racist policy and no better example of that than the first term.

Where Trump said he wanted a complete and total shutdown of Muslim immigration into the United States. And as you know, I help lead a scholars brief that challenged that idea and made the argument that so do my or agreed with, but the court rejected. That, you know, if you're engaged in racist, motivated policy, it's invalid. And we argued, of course, the travel ban was unconstitutional under the religion clauses

and the equal protection clauses. And that argument was rejected. Why? Because it's very hard to show intentional discrimination. And even though the president had announced he wanted a Muslim ban and when his lawyers tried to change around the structure of the executive order and the proclamation implementing it, he actually would tweet things like, "No, I preferred the first one.

“That's what I really wanted to do." And even then it was impossible to show where we failed to show”

to this court that there was ethnic religious discrimination.

in order to rectify this discrimination against black voting power.

And you know, you can't come to court unless you can show intentional discrimination.

“And yet, you know, what is that going to mean in practice?”

It's going to mean that the court does nothing to combat racist dilution of black votes. And you see that in these other areas too. And yes, that is what this court's done. But it really is the ratio of serious civil rights laws. Oh, yeah. Actually, my court order. Yeah, they are giving a gift to their dead racist parents and grandparents.

And before we hit a break, I want to touch on one more supreme court bit really briefly. Justice Alito temporarily restored male access to mythopristone, the abortion drug while the litigation is continuing. A lot of folks are surprised by this because they know that Alito is part of that. Caball that really does want to ban women's reproductive freedoms in all 50 states.

People were confused. Why is Alito giving it a stay? Cory, is that a sign the court might not be ready, at least yet,

“to fully embrace nationwide abortion pill restrictions?”

Or is this Alito spacing out the outrageous? No, it's very hard to read in when the court in these procedural orders is halting or allowing a lower court order to proceed.

I think the bottom line and the big picture of things is what we're seeing here is why the compromise that essentially we have right now,

where states get to decide under the Alito written dobs opinion might not really be the end. Because what's going on here if you look at the deeper issues is that the states are saying, look, if you allow for the male of federally approved abortion pill, then what's going to happen is that you're going to undermine our laws banning abortion at the local level. And to me what that does is it brings out how hard it is to have rights decided upon on a state-by-state basis.

And I think, you know, although what I favor of course is a national legislation to or a restoration of Rovers's way, that's not going to happen by the court, but maybe through legislation. The other side is thinking about it very differently, including I think Alito. And I wrote when Gordsich was nominated about what I thought was his desire to see a nationwide court imposed ban on abortion under the equal protection clause, and under the theory that the fetus is a constitutional person.

Well, you see gestures in that direction from Alito in the dobs opinion, really talking about the history of regarding a fetus as a life. And yes, as even a constitutional person, and that opens the possibility of a court imposed eventually ban on abortion, what this specific procedural ruling tells us. I don't think it tells us about the wider picture, which I still think is quite a danger.

I'm not just abortion rights in red states, but everywhere in the United States. Well, yeah. I mean, what are the separation of powers concerned here when courts are overriding medical expertise on drug safety? I mean, if judges who are not doctors can restrict FDA approved medication nationwide, because the judges who are not doctors have a bad feeling about it,

what precedent is this setting beyond abortion? Well, I don't know how much we could read into it. I mean, one thing I guess I'll say is that there's a question of federalism here, and it raises this issue, which is can we have rights determined by states, or in some ways, too, I think the idea of abandoning the 1965 Civil Rights Act is we're going back to states deciding

on whether they want to respect civil rights or not, good luck. In many instances, I don't think that's possible. And the current compromise, too, that allows states to decide now on matters of abortion. I don't know that that's tenable in the long run. I think that ultimately we might see the court intervene there.

By the way, in Trump's interest, certainly it's to have this contradiction to allow federally protected abortion through abortion pill, and then also to say the states can decide. That's the compromise that he and his head has arranged with his constituents, but I don't know that it's one that's going to last, because there's a deep contradiction there between states that are saying the fetus is a life and a constitutional person,

and a policy that says everybody gets to decide for themselves, every state decides for themselves who is and who isn't a constitutional person.

“You know, it's possible the worst thing Donald Trump ever did was make us forget how terrible George W. Bush was.”

And I am, I guess, glad we have Robertson, a leader around, so we never ever forget.

Professor, we got to cover a lot more ground in terms of presidential persecution. Let's take a quick break. We'll be back in a moment and we'll talk about, you know, the war on arts and crafts. And combing, this is, this is the oath in the office. There is a lot, I mean a lot going on in the news around our government and our laws,

Is this constitutional?

“If you don't remember all the civics classes, you may have taken in school,”

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The claim podcast from New Hampshire Public Radio. Civics 101 is an entertaining way to learn about how our government works, or at least how it's supposed to work. And you'll hear a lot of surprising stories along the way. Hosted by Hannah McCarthy and Nick Capoteche.

Civics 101 will help you understand a bit more about what's going on, and maybe even make you a smarter citizen. You can listen to civics 101 wherever you get your podcasts, and tell them the oath in the office sent you. Hey, it's Cory. If you're like me, you may need to take a break from the 24 hour news cycle

to recharge and renew your mind, which is why I recommend listening to how to with Mike Peska, the longstanding advice show and the ambinominated, best personal growth podcast.

Back for a new season with the new host, how to with Mike Peska,

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or wherever you get your podcasts, and tell them I send you. Hey, all. Glenn Hirschner here. Friends, I hope you'll join me on my audio podcast Justice Matters. We talk about not only the legal issues of the day, but we also talk about the need to reform ethics in our government.

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against all enemies far and end domestic. Let's add 22 words to that oath. Quote. And I will promptly report any instances of crime and/or corruption by government officials and employees of which I've become aware.

Friends, our democracy is worth fighting for. Join us in this fight. Because Justice Matters. Look for Justice Matters wherever you ordinarily find your podcasts. Welcome back to the oath and the office.

I'm John Fughel, saying along with Professor Corey Brechner, getting very excited for our conversation with Kate Shaw coming up. But first, Corey, you know what happened? A disturbed, damn fool, illegally tried to attack the White House correspondent's dinner.

It seems like he never actually fired one of his guns once.

And he didn't really have a very good plan, and they took him down. And Donald Trump's response was not, "They got no one was hurt." Or, "All right, let's allow the temperature." Or, "violence has no place in gravity." No. Donald Trump's response to this was, "Quick.

Let's arrest James Comey and fire Jimmy Kimmel." I mean, he's going back to the greatest hits of 2025 and previously Corey. The greatest threat to America is not gun violence. It's monologue jokes and it's sea shells. So let me ask you, a grand jury has indicted former FBI director James Comey over his

Instagram post of sea shells, which he deleted that said 86-47. We're looking at 10 years in prison for shell art. Corey, most president's ignore criticism. This one goes to war on arts and crafts. Legally speaking, how unusual or flimsy is this case.

We've talked so much about Donald Trump's pattern that wealthy people have, I guess, of being able to use the court system to punish and bankrupt your enemies and make them rank up legal costs. But how did a grand jury ever sign off on this? Well, Todd Blanch, the acting attorney general is claiming there's much more to this case than

just what we're seeing, the arts and crafts. But I have to say, it doesn't look like it. He's claiming that the former FBI director threatened the life of the president of the United States. That's sea shells.

And then I say, "Sandcastle unit." My God. So far is that the phrase 86, which is used over and over, you know, 86 my boss, fire my boss, you know, 86 this, 86. It doesn't mean kill.

It means get rid of. And the idea that somehow, you know, this is, you know, everybody is going to be prosecuted who says a similar thing. I don't think so. It's such a common term.

So it's the worst kind of selective prosecution, which, of course, is not allowed. And it also on its faces absurd that this is any kind of threat.

and I think before Blanch, I would have said the worst attorney general we've had.

This guy is really giving a run for her money because she didn't want to just do these naked political prosecutions that we're going to embarrass or that we're going to,

“I think, and should lead to the disarmament of anybody whose name is on these papers.”

Because there is no case here. It is simply an attempt to try to shut down a political opponent of the president of the United States. And that's what's going on here. This kind of selective prosecution. I'm in California now and I've been doing research at the Nixon archives and looking through their attempts,

which were horrific to prosecute Daniel Ellsberg. But you know, they knew to do it in secret that they weren't going to tell anybody about it. They knew they were breaking the rules you see that in the documents. These guys are just naked in their authoritarianism. It's a bunch of C shells that spell out 86, 47.

How does Todd Blanch not get disparate someday?

I mean, it has to be absolutely.

And there are junior lawyers there. We talked to Precura about this, which is saying to them directly. This was, you know, one of the legendary members of the Department of Justice saying, You know, don't do it. Don't resign rather than risk your career.

And I've got to say that too.

“I know I have a lot of former students who listen to the podcast.”

Some of whom might still be at the Department of Justice. And I just do not think you can stay anymore. When the Department of Justice is signing off on something that any American can look at and see how ridiculous and absurd it is that this is any kind of threat. And what's happened is that the Department of Justice is purely a weapon for going

after the president's political opponents. And absolutely the right response to this for anybody involved in this case,

especially is disparming.

Absolutely. I mean, under this legal theory, like dump Trump bumper stickers could be a legal tips on how to hide his body. I mean, you can extrapolate this to anything you want. It's not often I'm going to praise Kristen Welker on Meet the Press,

but she said to him, "What about all the hundreds of online retailers selling 86-47 shirts?" You go and after all of those. Right. And black and white. Just the man Trump hates.

Just the man Trump hates.

“We're exploiting this assassination attempt that wasn't assassination attempt.”

I mean, if dozens of people sell shirts and hats with the same phrase, the selective prosecution seems to be a bit of a constitutional issue here. Yeah, not just a little, it's just screaming. It's hard to show, selective prosecution. But, you know, in what world is this not?

When you have that phrase being used by Republicans, by Democrats, by citizens all over the place, there is a bit of a, I am Spartacus moment too, where I'm seeing a lot of on Facebook and social media people. That's right. I'm posting their own 86-47 as a way of saying, you know,

this isn't a threat in any way. And if you think it is, come after the, you know, millions of Americans who have used that phrase. And, you know, not just 86-47, but 86. And whatever example you want to come up with, you know, that would also be a death threat. And, you know, now Blanche says he has more evidence.

I just don't think so. I don't think that in any remote universe is that former FBI director trying to kill the president of the United States. Oh, my God. You know, it shows you how little they think of us, how little they think of the citizenry that they can get away with it, that they're just in their own universe.

The president is going to control of the Department of Justice. By the way, they have that their future on Donald Trump. So the Department of Justice is completely gone. Oh, yeah. Yeah.

But here's the weird thing. James Komi's daughter. Morin Komi was a federal prosecutor. As you know, Professor, she worked on the Epstein case, worked on the Maxwell case. The Trump administration fired her.

She sued a judge, just ruled her lawsuit could proceed against Trump. And great, because I want to see more fire people suing this administration. But one day later, they re-indicted her dad, what a miraculous alignment of the stars, Corey. I mean, I mean, even if this case is weak, the prosecution itself is sending the message. The legal process is being used not to win convictions, but to torment, persecute, and terrify critics.

You know, this president operates like a criminal. No, he is. Yes, well, he is. He's a criminal. Yes. And died in four times, convicted criminal, convicted once in the New York stormy Daniels case. And his mentality is, you know, he was also, he was guilty of tax, guilty of tax fraud and mail fraud insurance fraud, too. Don't leave that out. Go ahead.

I just want to say, you know, go back to 2016 when he was campaigning. The way you and I met John as I wrote a piece called Trump versus the Constitution of God. I went through all of his proposals. And why, obviously, they were illegal, unconstitutional. One was to torture the families of suspected terrorists.

So I guess it shouldn't surprise us that somebody who campaigned on the idea that you could torture the families of people who are guilty of crimes

Of course, and at this rate, the next indictment will be for hostile macaroni arch. But right now, the administration is threatening ABC's broadcast licenses and they're doing it through the deeply independent FCC. Officially, the lie is that it's over DEI policies because ABC is not racist and sexist enough to please him. But the real reason is dear leader got his feelings hurt during Kimmel monologue time. This FCC early review of ABC station licenses comes after Trump and his wife went ballistic over Jimmy Kimmel's jokes.

Corey, I don't believe I have to ask this question. I mean, we went through this a year ago.

“There is no serious legal basis for tying late night comedy content to station license review, correct?”

There certainly shouldn't be, I mean, Trump again sees that it is a privilege that he is granting these licenses to ABC and other networks. And of course, the spectrum is owned by the government and so it's licensed to ABC and other networks. And he's figuring, you know, what he's doing over and over again is how can I go after my opponents? So in the other story that we were talking about, it's using the Department of Justice. By the way, even if he doesn't succeed in these tasks, that's not necessarily a point.

It's about the chilling effect, about the chilling effect against his specific opponents and then all of the rest of us. So even if it turns out that this case is thrown out by a judge as I think it will, he still gets some of what he wanted.

And that's true here too, even if he doesn't ultimately revoke the licenses.

He's sending a message to ABC and other networks. Don't put people like Kimmel on or I'm coming after you. And he doesn't have to succeed in withdrawing the license. He just has to intimidate executives who already are so risk-averse about politics, about putting political comedy on the air. And you know, if they're weighing, they're instinct against as opposed to the ratings that will come with it.

And part of that balance involves, we might lose our license. You can guess how in the future these things are going to come out. So one of the dangers here is to say he's not going to succeed in the call me case. He's not going to succeed in revoking the license. That's not the point.

That's not the point. Point is to intimidate. Nixon, I have to say one of the things I keep seeing in the files is that, you know, I didn't care at all about Elzberg. He says that, you know, as a person, I wanted to shut him down. I thought it was a threat, but I also wanted to intimidate everybody else like him.

“And that's what's going on here with Trump.”

It's not just about coal means, it's not just about Kimmel. It's about all of us and trying to silence us. Yeah, exactly. And again, I mean, how strong would ABC's first amendment case be, Corey, if this thing were to escalate? Because when they tried to shut them down and cancel Kimmel last year,

people forget they had sinclair on their side. They had a bunch of affiliates on their side.

And it was finally, I'll never stop saying, this Monday night football was the unspoken hero,

where they threatened to take Monday night football away from the affiliate sense and clear if they didn't back down. And they backed down. This time, this is just Trump and his wife screaming. If ABC did decide to launch a first amendment lawsuit, I mean, that could be fascinating for decent people. The angels would weep with joy.

You know, I'll go just to the bedrock principle of the first amendment the way that we understand it. And I'm not just saying this as somebody who's, you know, proud to have taught it brown for 25 years, but the most important thinker about the first amendment, the person who the courts have repeatedly said, "Gave us our modern first amendment is a man named Alexander Miklejohn. He was a professor and dean at Brown years before me."

But he was a critic too of the shutdown of communist and left his speech. He wasn't a communist, but he believed that we all have the right to hear all viewpoints. That was his argument.

All opinions should be protected under the first amendment.

And the country was doing a terrible job of that in the 20th century. Eventually, the courts took that idea on, it's a simple idea that you cannot use the force of government to shut down opinion. Well, what's going on in the combing case? What's going on in the Jimmy Kimmel case? The president doesn't like, not only their opinions, but their criticisms of him.

It goes back to the same playbook as the sedition act, which shut down critics of John Adams. Our modern first amendment rejects that.

“I think even for this court, which we've been so critical of, that would be a step too far to allow”

these political prosecutions to allow this in the end if they really did revoke the license. So, I think here, it's like the birthright citizenship or the tariffs case. Trump is so far out on a limb that I do believe the courts have vindicated our rights, at least in this one. Oh, eventually they will. Yeah, this is all going to look really nasty.

And the only question is how much will the culture shame the quiz links and suckups who propped up this authoritarian douchebag regime, I don't mean to get to clinical and legal Cory. Okay, let's take a quick break. Well, we come back.

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Welcome back to the oath and the office. So Professor, we're seeing all these clashes between this administration and institutions historically designed to operate with some independence from direct presidential control. We've really learned a lot about the unitary executive theory in the last year and a half. And I'm so glad to welcome today's guest.

What a pleasure to welcome a friend and somebody elaborated with. And somebody admire Kate Shaw. This is a professor of law at the University of Pennsylvania, carry law school. She's also had multiple positions in government, including clerking for justice Stevens and working in the White House Council's office under President Obama. I admire her work in her scholarship, which is a period in places like the Harvard Law Review,

but she's also really a pioneer in speaking to the public about the Supreme Court, both through her pieces and the New York Times and the Atlantic.

And of course, on her amazing podcast strict scrutiny, we of course had Melissa and Leah as well.

And now so glad to welcome Kate Shaw to the oath and the office. Okay, welcome to the oath and the office. Thank you so much, Corey, and John for having me. And I'm so happy to get to round out the triumvirate of Michael. So we've now all made appearances, but it's great to be here.

“So great. I mean, I think we'll just jump in if you don't mind.”

And actually, I wanted to begin by talking about this case that the Supreme Court will have heard when oral argument will have happened by the time listeners are hearing this about temporary protected status. And, you know, it relates to the theme of course of the president and his rhetoric about the most degrading terms, Haitians, and people from countries that he has, of course, label with epithets. But talk about how the president, you're an expert, I should say, to our listeners on presidential speech

and the way that presidential speech figures into questions of constitutional law and certainly that's true here. I mean, so how does his rhetoric and his awful degrading of people based on national origin relate to this case? And can you just introduce it and tell us a bit about it?

Sure, yeah, let me talk for a minute about the case first.

And then I'll talk about the kind of presidential rhetoric question. So this is a case that will have been argued last Wednesday when this show airs involving the administration's decision to cancel temporary protected status or TPS. So this is a designation, there's a statute that creates the TPS status and then the executive branch makes some determinations, basically that conditions in a country are so dangerous or unsafe that people just can't responsibly be sent there. So think things like, you know, war, natural disaster or things like that.

So this designation is something that executive branches have engaged in for decades. And a number of countries, including Syria and Haiti, are under a TPS designation. So people from those countries who are already in the United States can work legally and travel legally. But TPS designation is not itself a path to like permanent legal status. So coming into office, the administration moved pretty quickly to cancel TPS in a number of places.

“And it's a very important issue in these two cases consolidated for argument are that Haiti and Syria TPS designations.”

And so late last year, then Secretary Christy Nome announced that she was canceling the designation for both of those countries without much explanation. Essentially, and that is a key kind of dynamic in the case. So lawsuits were filed both by Haitian TPS recipients and also Syrian TPS recipients. And in both cases, the district courts found these decisions were made. And the regulations were made without following legal process.

So just to focus on the Haiti case, which is a little bit more kind of fully developed. The law court in DC found both at the statute, the administrative procedure act that just kind of governs how agencies are supposed to make decisions was violated. And that this wasn't recent decision making right agencies are supposed to take an evidence. And based on that evidence, make decisions that they then explain.

And it really conduct a process that actually assess the conditions on the ground in Haiti.

“You know, if they had, they probably would have noted things like the State Department still has it don't travel advisory in effect for Haiti.”

And when it came to kind of explanations, there just wasn't really a reasoned explanation provided. And then, so that's the kind of problem under the statute. But there's also a problem under the Constitution, which, you know, demands that government treat persons equally right under the equal protection clause. And the finding the district court made there was that it appeared highly likely. The administration was driven by bias, animus, dislike of non-white immigrants, essentially, and hitting particular in making this decision.

So that's the question before the court in this case. And thanks for the explanation. And if I hear you ride or to related issues, one is that even administrative agencies have to act in a way that is not arbitrary. The precia is required by the law, the administrative procedures act. And then there's another related question, which is, you know, not only whether or not this is arbitrary precia.

“But well, if it's not based in reasons, what's it based? Why are they doing this?”

And then the answer seems to be here that it's the president's bigotry. How do you see this going? One, you know, case that you and I have talked a lot about, and that listeners know well, that I worry about having a slight flashback to, of course, is Trump versus Hawaii and there. A lot of us did think, well, it was very similar. The president said that he wanted a complete and total shutdown of Muslim immigration.

It was racist and anti-Muslim rhetoric when it was rewritten to try to hide the animancy, so well, I prefer the first of these travel bands, the more obviously biased one.

And you hear some of these arguments from the administration, citing that case and also saying, really, it's not relevant to these statements. So how do you see the court weighing this? I mean, there are differences, of course, which are versus Hawaii. I mean, so a couple of things. One, the administration is actually first saying, you courts can't even review these determinations at all. They are totally within the discretion of the executive branch. I don't think that's likely to prevail if it does. It would basically mean that the administration could just buy Fiat grant extend on mass or revoke on mass.

This temporary protected status designation and it would make the statute that's supposed to govern that status basically unenforceable, right, by courts. But if the court kind of gets past that and says, yes, we do get to review what the administration has done here.

“I think it's definitely the case that the decision by the by a majority of air majority of the court to allow Trump to implement the third iteration of his travel band back in the first Trump administration”

is going to be a critical opinion in terms of how the court resolves this case. Absolutely. The administration says, Trump versus Hawaii says you essentially can't look behind the face of the decision like this to kind of probe the motives of executive branch officials, like the president, like the secretary of state or homeland security. And I think that's an overeating of Trump versus Hawaii sort of is one thing. I read the decision as leaving a crack in the door to sometimes consider statements by executive branch officials. The court sort of says, well, we're going to rely on a concession by the solicitor general made during the oral argument in Trump versus Hawaii. That's a little bit in the weeds, but actually don't think it closes the door in the way the administration has suggested.

It also was about this decision to allow entry right admission into the country, which is an area in which, you know, the executive branch, the president has always had very broad discretion.

And so it would be an extension of Trump versus Hawaii to even say it applies here, because these are individuals who are already here. It's not about coming in. And finally, I just when we're talking about a constitutional question, the motives of government officials are relevant, right? They're relevant to this. This is the relevant and first amendment cases. And when you have officials saying things like, no one said, we don't want killers, leeches and entitlement junkies. Trump has talked about shithole countries. Haitian immigrants themselves were singled out for slander with the accusation that they were eating pets in Springfield, Ohio by multiple administration officials.

I can't be that we assess whether the equal protection guarantees of a constitution have been flagrantly violated without reference to that kind of evidence about what is driving government officials. It seems really critical to me that the court not put blinders on when it comes to the motivation of government officials in a case like this. So critical, the median up a blinder's on in a case like this, because you have just dropped so many facts towards about this case that most mainstream media conveniently doesn't have time for again, the state department, our state, but Trump state department is telling Americans, it is not safe to travel to Haiti, and we are seeking to deport families there who have put down roots in paying taxes here for a couple years now.

Again, these folks were invited here after the earthquake, and because there is no sustainable government after the murder of President Morsey, these Haitians majority Christian, as you mentioned are the same people, the president and vice president lied about with this vicious racist smear.

I understand that their argument, the administration is that courts have no business reviewing TPS terminations, but if the court rules against him, what limits would it be reaffirming?

So if it rules against Trump here, that does seem to reaffirm that the president does not have carte blanche to implement his policy preferences without regard to legal process and the substantive limitations that statutes and the constitution place on government. So I think that would be important. I mean, the court we should remember, I know you guys have talked about the shadow docket. The court both did something really concerning in this area on the shadow docket and didn't do that same thing here in a way that might be hopeful. So let me just say, in the other kind of TPS terminations, the government has made include Venezuela TPS designation, that was also invalidated by a lower court.

But on the shadow docket, the Supreme Court lifted that lower court injunction and allowed the termination of TPS for Venezuela to go into effect months ago.

And the court was rightly, rally criticized for doing that without any explanation.

“And when these cases came to the court, I think it was striking that the court did not put on hold the lower court limitations, meaning, you know, allow the administration to remove TPS and maybe let people start being sent back to Syria.”

And Haiti, it left the lower court rulings in place, meaning the administration action is blocked. And it's set these cases for arguments. So, you know, I don't want to give the court a cookie for doing the bare minimum. They should listen to arguments about whether to terminate this longstanding status in effect for, I think it's actually hundreds of thousands of individuals, at least overall with TPS, it's over a million across the different countries. But, you know, in this group, I mean, not that they should make the difference in the case, but there are, you know, researchers and economists and people who have opened businesses and college students and graduates to the employers.

“I mean, the plaintiffs in these cases are just like heard working, upstanding contributors to their communities and that's who administration wants to relegate to this uncertain fate.”

And that should matter. I should also mention, we just recently saw 10 Republicans in the House defy this president and vote to extend their protected status, although that wasn't so much for humanitarian reasons as it is that. At this point, those migrants are propping up the entire healthcare system of some regions in their districts. Yeah, right, but it just goes to show you the administration considered none of this in making this determination right what the kind of cost to communities to individuals affected by this decision, but also to their kind of schools and offices and larger communities.

“Like those are the kinds of factors that are supposed to be weighed by decision makers who are actually kind of reasoning about whether to take particular courses of action and none of that happened here.”

There's a so terrifying to non legal minds like mine why I return to the two of you because I could thinking if the court accepts this theory that they have no role reviewing this then what precedent does that set beyond immigration this keeps me up at night. And as Kate says, you know, there are argument in Trump versus Hawaii was well, these people are outside the country trying to come in and the president usually has lots of difference given to him or her in matters of foreign policy, that's a long standing idea.

But this isn't a question of the rights of people who want to come into the country, they're already here and so if we ignore the president's bigotry and that of his administration. And what is it doing, what is it saying about any constitutional constraint, it's one of these do we're dying moments where whether or not we have an equal protection clause, whether or not we have a course and against our betraying precious policy really is now in front of us. I mean, I wanted to pivot a little, okay, but you've already brought it up.

I mean, do you think that the worries about the shadow docket are hyperbally we're hearing some of that, oh, it's just the court engaging in some procedural maneuvers or do you worry that it's a way of this rating the fundamental constitutional principles that we all care about. I mean, you've already spoken to the way that if you really look at the arguments here, it looks like this stripping of temporary protected status is not lawful. But that requires, you know, seeing the arguments and hearing the argument. So I mean, what what you're thought about that is the shadow docket itself, what kind of danger to law in a way that we're more secure when we hear these arguments when we see full opinions.

Yeah, I mean, I think the shadow docket is enormously kind of dangerous and destructive from the perspective of the rule of law. So in the last year and change, you know, it's something like it's 25-ish substantive rulings that have gone for President Trump on the shadow docket.

And that means they're just not getting, first of all, they're not producing reasoned opinions for many of these cases, many of them are disposed of with like a one sentence order.

Cancell funding, right? So those are all unreasoned. There are other shadow docket orders that have a couple sentences or paragraphs or maybe two pages at most of reasoning.

But they don't really in a lot of these cases tell us why they are putting, you know, siding with the administration. It's literally a thumbs up or a thumbs down, which is just not how law is done, right, reason giving is kind of the essence of the legal and judicial process.

“And this lacks that. And it also means, I mean, we're talking, I think about the TPS cases in part because they are going to be argued or when this episode drops have been argued.”

And the shadow docket just evades all of that public scrutiny and discussion and deliberation and it feels like it's kind of by design. So when the court, you know, in the dead of night hands down a ruling with enormous consequences. We just don't write about it and talk about it the same way we do in the court schedules the case for argument. And I think that means that it escapes the substantive rulings they issue escape kind of public criticism and scrutiny. And I think that is in part the point. And so I think that to the extent the court here is taking cues and has set these cases for argument rather than ruling in the dead of night.

That is, you know, a salutary development, but there needs to be much, much more than they need to do much less on the shadow docket.

I was going to say, OK, I'd be remiss if I didn't tell our listeners and ask you about your confrontation or colloquial with Josh Holley in the Senate hearings about the judiciary committee.

And I'll just set it up and we can play the clip as well. But, you know, when argument against what all of us are saying about the shadow docket and its danger to democracy as well, these lower courts have been so partisan and unprecedented ways they're stopping President Trump's agenda. And, you know, we need ways of overcoming this partisanship from lower courts. And you, you know, in one of those moments that you just had the answer right, I'll let you set that up. Can you tell us about this viral moment that is all over the Internet who are doing in Senator Holley?

Sure. Well, so I was testifying in a hearing that was about kind of nationwide injunctions. The premise of the hearing was the lower courts are out of control. And, you know, these nationwide injunctions need to be reigned in. And let's see the chart, the Trump chart, which was done really only once Trump came into office for the first time. You don't think this is a little bit anomalous.

You don't think that's a little bit strange. A very plausible explanation.

“Senator, you have to consider is that he has engaged in much more lawless activity than other presidents, right?”

You don't think.

It's because he was never used before the 1960s and suddenly Democrat judges decide we love the nationwide injunctions.

And then when Biden comes office, no, it no way. It's Republican appointees as well, Senator. The premise was fatally flawed, right? The lower courts were doing the work of courts, which is evaluating the lawfulness of executive branch action. And Holley sort of pulled up a white board that had a chart that showed how many more injunctions.

Trump administration had faced as compared to previous, you know, most recent presidents, both Democratic and Republican. And he just doesn't necessarily mean the courts are biased against President Trump.

“And I just said something like I think we have to consider that this president is engaging in more lawless action than other presidents.”

That seemed pretty clearly to be what the chart showed to me. And also, you know, to support the point a little bit, like these were courts, right? Judges sitting in the lower courts who had been appointed by presidents of both parties across, you know, decades who were ruling overwhelmingly against President Trump. This was not like just Democratic appointees handing down these rulings.

And it just sort of, I think, fundamentally undermine the premise that this was somehow, you know, partisan entity. Trump and his policies, as opposed to courts, just sort of doing the work of judging. I think you might be right that the majority of mainstream folks just don't understand this enough. Maybe we need to find a scarier term than shadow docket. I always thought the most brilliant thing about the oligarchs is that they have a name like the oligarchs that no one's ever going to learn without a graduate degree.

And it just seems like people are not really aware of the volume of shadow docket rulings. And people aren't really aware of the lack of explanation or how substantive the outcomes have been for something that is, I mean, really so unusual for the lay folk like myself. How historically strange is it for the court to make this many major policy impacting decisions without having a full briefing without having an oral argument. I mean, there really is no precedent. And I think you're right. The lower courts are biased towards the law, not the found.

Yes. Well, I mean, dancer question. It's totally unprecedented to see this volume both of asks made of the court and then of sort of grants of emergency relief by the court.

That was essentially the cadence in the George W Bush and Obama administrations. And so, you know, you have less than 10 across 16 years of presidency. So these grants of this kind of relief. And here you have in one year 25.

So there's just no comparison. And it's it's an interesting kind of point about sort of no-mic nature and terminology. I do think the words are powerful. And so shadow talking.

“I think is pretty good. And then it does sound a little more ominous than like the law. Yeah. Okay.”

Something like interim, interim docket, which is designed to start draining like the blood. Got some hard content. This has got a case sound. And that's a punch. But I hear you that we could workshop it to find something sort of even that better conveys just how alarming this development has been. I mean, I certainly agree. I think we all have been agreement that the idea of the court hiding its reasoning is just enabled it. I'm rather extremely important point, which also made to all these and this unprecedented assault democracy on the law.

It allows them to really hide what their reasoning is in order to approve the president's policies. And there's no accountability at all. But just to ship the little bit, sometimes when the court does give it to reasoning, we also have to worry. I'm worried about that. In the cases connected to the unitary executive and of course,

firing the federal trade commission case, firing a slaughter case that we're going to have a decision on.

You know, is this an instance where we should worry too about where the court is headed, even in its more transparent jurisprudence? I know you're interested in the related question of the independence of the civil service. And here we're talking about the independence, longstanding independence of independent agencies and those who lead them. And the Republican Party, at least since the meets attorney general period, has had a longstanding desire to destroy these independent agencies and to make them under the control of the president.

So, I mean, what do you think do you see this as inevitably going the way of the administration and how much, you know, is this itself a kind of longstanding threat to independence and democracy itself? Or I'll ask the same question.

“I said about the shadow document, isn't that really not something that we need to worry about?”

Oh, I'm very worried about it. So, right, we have the two cases that you referenced. One involving one of the commissioners on the federal trade commission or FTC. And then one involving a governor on the federal reserve. And so the court heard those two cases, in both cases, the president claims the power to make these removals, right, to fire these officials. The arguments are a little bit different in the FTC case. The president is saying,

I have the absolute right under Article II of the Constitution to fire, you know, an official who's ahead of an independent agency. And the statutes that have sort of long constrained the presidents, unilateral authority, to make these kinds of firings are unconstitutional because they encroach to deeply unpresidential power. And this Supreme Court's case law to the contrary, including this nearly century old homperies executive case, are incorrect and inconsistent with a correct understanding of presidential authority.

The Fed case is a little bit different because they're the president is not saying, I have absolute authority to remove a governor on the Fed. There is a statute that says that Fed governor's can only be removed for cause. And here he says that based on these, you know, sort of as far as I can tell, pretty clearly manufactured mortgage fraud allegations against Lisa Cook,

that those allegations supply cause. So the president has the right to fire her, but the statute, you know, he has satisfied the statute. He's not saying the statute with its requirements of forecaused is unconstitutional. So it's a little bit different. I think there's a good chance the court rules for Trump in the FTC case.

Overrule Trump's executive says he can fire Rebecca Slotter. And the heads of all similar independent agencies kind of at will. And that is a enormous deal in and of itself. I think he's very likely to rule against Trump in the Cook case. I'm not quite sure how the court gets there.

There's a few different paths, but that would be important because it, you know, it wouldn't hand Trump what he's asking for, which is functionally, even if not formally, complete control over the Fed over who sits on it.

“And I think by extension, what the Fed does around really important things like interest rates.”

But even if that's right and certainly if Trump wins in both cases, I think that that is seismic in terms of how much new power it gives the president to control these long independent bodies that are in the government,

but have always been understood not to act purely at the behest of the president.

So think about all the financial regulatory agencies, the National Labor Relations Board, the Equal Employment Opportunity Commission, the Nuclear Regulatory Commission. I mean, the list is long. It also includes election administration agencies, the EAC and the FEC. Those are both election-related agencies giving complete presidential control over those agencies.

So I do think that I'm not sure who is suggesting that these are not really important cases,

but I would defy them to defend that position because Trump versus United States, enormous opinion handed down before Trump returned to office, giving, you know, outsize authority to the president.

“I think these would be a not category of just affecting sort of a still further transfer of power”

away from Congress and to the presidency. Just what I point out really quickly, Trump seems to believe the federal reserve is one guy setting interest rates and not a board voting on this. And John Roberts, I'm not counting on his vanity to save us anymore.

I really was spent a long time, Michelle, thinking John Roberts obsession with how neutral he looks

in the history books might save us. I'm not so sure he's holding up his standard. And I think I too sort of labored under the view that that was at least a driving force for Roberts. And I too have sort of been parted with that. Sorry for that. I mean, no, no, no, no.

I mean, I was going to ask, yeah, not so much about the view that this isn't a big deal, but that there is an argument for the unitary executive, which is pretty straightforward, which is to say, look, there are three branches of government, which are these independent agencies in there, kind of, you know, beyond reach of democracy and branches are either executive or, you know, if they're executive, they're under control of the president.

I mean, one related, I guess thought to just kind of ask you about is,

“there was a sense, you know, I think when these theories were conceived of that,”

you were going to have a good president. I mean, you know, in the same way that the framers imagined George Washington in the 1980s, of course they were thinking about Ronald Reagan, a decent person who wasn't, you know, not going to destroy democracy. He was going to improve people's lives or, you know, and minimum get bad regulations. Maybe we'll talk another show about that story, look at that.

I'm just talking in the mind of those, you know, that we're creating theory. I mean, how me wrap my, and our listeners' minds around the idea of the way that John Roberts sees it. I mean, he's obviously not stuck in the 1980s. It's he not aware of the kind of threat when you have a president like this, that handing over this amount of power has, is it really that naive in what he's doing?

“Is it his commitment to a longstanding theory that he's always believed in?”

And he feels like he can't get rid of it? Or why is there no recognition of the danger of handing over this enormous power? Of course, and Trump versus the United States, and the immunity case, you know, if they were naive at that time, now they have to see the destruction that they've brought about. Yeah.

I wish I had a better answer to this question, Corey. I mean, yes, you would think that the last year and change has supplied sufficient evidence of just the damage to the constitutional order that can be done to a president who views himself as unbound by the law. You think that that would land in some way with the court, or at least some of its members, including John Roberts. But I think that the shadow docket kind of data that we've just been talking about is inconsistent with that theory that they,

you know, they should be given pause about continuing to hand the president sort of unbridled authority by what has transpired.

I mean, if anything, you know, in the first Trump administration, you had cases like the census citizenship case and the DACA decision case,

where John Roberts wrote opinions ruling against Trump for basically behaving in a lawless fashion. And fast forward to the second Trump administration, where all of that looks so quaint compared to the lawlessness that we have seen on display, and Roberts has sided with his conservative colleagues again and again to hand Trump even more power. And so the tariff case is obviously an important kind of counter current in that that is a big ruling against the president. And maybe that suggests that, you know, some of this is landing for Roberts in some way.

But I do think that we will need to see with these two presidential control and presidential removal cases, just where John Roberts is vis-a-vis this president. Again, I have a hard time jumping inside of his mind. And I do agree with what you said about kind of, you know, the premise of a lot of arguments about presidential power is a president who is to agree with his right or at least has had some sort of basic civic virtue. And I think that we have all seen just how ill prepared the system is for a president who utterly lacks that quote.

Yeah, welcome to the founders didn't really think this through. Can I ask both of you as we wrap up? I mean, at what point do we have to say that presidential control over the executive branch is now just completely incompatible with checks and balances? Well, I mean, I have to say I think that a degree of presidential control over the executive branch and even actually over independent agencies can be consistent with the system of separated powers. So long as courts continue to act as a check on unlawful action and over each and so long as Congress continues to play an active role in both passing laws in engaging in meaningful oversight.

The Supreme Court has disabled Congress from some of the kinds of oversight that would have otherwise enabled it to actually sort of act as a responsible steward of the power that it gives to the executive branch.

And some of them are way lower profile, the court has sort of hamstrung Congress and actually meaningfully overseeing the executive branch.

So I and I'm a former White House lawyer actually do think that a powerful presidency and a president constrained by law are not fundamentally incompatible. Like the president should have a lot of authority and that authority should be kind of bounded and overseen by the other branches of government.

“So I think those two things can coexist, but obviously kind of Trump is challenging many of those court views.”

I mean, I don't think that we have to get rid of the presidency altogether and the idea of strong presidential power in order to have the rule of law.

But things have definitely gone too far as Kate knows and all of you know, I'm fond of quoting Patrick Henry who warned about, you know, fine if you have a good president, what if you have a bad president, what if you have a criminal president, they might destroy the system, and so far he's been wrong. Now I hope he's not right after this Supreme Court makes a series of these decisions and enables a president that clearly does want to be well Henry is the phrase crown himself a monarch that does I think capture a lot of Trump's ambition.

“At the same time, I think when we think about recovery, we don't have to get rid of executive power altogether. We just have to figure out how to rain it in and make it subject to the rule of law.”

Certainly the immunity case and the destruction that it's raw has to be pushed back on and we've got to think about maybe through legislation, putting a lot of checks and balances. Kate Shaw, it's been such an honor to have you on the oath in the office podcast. One of my favorite people to talk about constitutional law and presidential power with, I should say we actually taught a class together at the New York historical and to have you join us on the oath in the offices in an honor. I mentioned again your great podcast, which I had the opportunity to be on strict scrutiny and just thank you for joining us Kate Shaw on the oath in the office.

Pleasure to be here. Thank you so much for having me, Corey Anton. Thank you so much Kate Shaw. Everybody do yourself a favor and subscribe to the podcast strict scrutiny and professor. How can our listeners follow you and keep up with your brilliance the rest of the week. You can find me on blue sky. A lot of our listeners are communicating with me on blue sky and even sending questions that way. You could also send questions to Corey dot Brett Schneider at gmail.com. And of course subscribe to this podcast, subscribe to the oath in the office wherever you get it. You could watch it on YouTube. If you haven't found us on sub-stack, there's the oath in the office.

“Subscribe there too. And you know, if you want to see what the Brooklyn public library was praising, you can buy my books, the presidents and the people, five leaders who threaten democracy and the citizens who fought to defend them.”

Check out the list from the Brooklyn public library. Everybody 250 for 250 featuring professor Corey bret Schneider. You are one of the 250 most influential authors in American history.

You know, Don Jr. didn't make this list for his book triggered. You're like, this is amazing. What you've done, Corey.

I'm on Series XM Progress five nights a week with Corey on Mondays and I also do a sub-stack and my book is called Separation of Church and Hate. And my podcast is called The John Feekel Singh podcast. So thank you. And I want to thank Wendy and Paya Wolf and everyone who helps us put the show together every week. And most of all, I want to thank you. My influential star, professor Corey bret Schneider for all you do. I'm John Feekel Singh and we will see you guys next time on the oath and the office. Please be sure to subscribe and tell your friends. Peace.