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

This country right now is being run like a casino by people who've been banned from casinos. Really seems Cory, this court believes America has to become colorblind only when race is used to help minorities. It's not just about Comey. It's not just about Kimmel. It's about all of us and trying to silence us. >> This president is engaging in more lawless action than other presidents. That seemed pretty clearly to be what the chart showed to me. 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.

>> Welcome to the Oath in the Office podcast. I'm John Fugalang. We have a great show today. The Supreme Court gutting the voting rights act. Donald Trump tried to indict James Comey for sea shell art going after ABC's license and of course the mythopristone ruling and special guest 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 presidents of the people, Professor Cory Brush Schneider. 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 it 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 uh listen not just to our discussion but to this amazing interview with Kate Shaw to my mind one of the best uh legal analysts out there. One of my favorite people to talk about the Supreme Court uh too. We've had her other co-hosts Leah Litman and Melissa Murray on our podcast and um so glad that we'll uh complete the trio with with Kate Shaw.

>> Yeah. Well, the whole host of Strict Scrutiny >> and I'm excited for all of it. I'm I'm really excited to talk about the Supreme Court uh finally gutting 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 um something called 250 for 250. It's a librarian curated list of the 250 most influential books that shape America's 250 year history. Cuz I don't know if you've heard uh that's coming up. This was selected by two dozen librarians from over 600 candidates. And the list is, you know, 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 Sojur Truth. It's a great list. The Scarlet Letter by Hawthorne, Walden by Theorough, Leaves of Grass by Walt Whitman, and what's this here? The Presidents and the People by Professor Corey Brett Schneider.

Cory, 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. Uh, and, you know, to be included is really an honor and to be included uh on this list by the amazing Brooklyn Public Library leader in um uh really in literacy around the country. Uh, 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. Uh, 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 uh outlining being honest about the threats to democracy, but also giving uh 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. Um Corey, I I I I'm not surprised the Supreme Court did it again. The court's 36 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. Um, solist aristocrat John Roberts has spent years trying to make it harder for black Americans to have representation in government. Instead of being disbarred for his wife taking $10 million from firms with cases before him, he has instead stalked the voting act, the voting rights act for years. We've talked about it. He's been like Inspector Ja going after Jean Valjon. In 2013, Shelby County versus Holder. They destroyed Article 5, which made states with historic racist obstacles to voting

follow pre-clarance rules to prevent discrimination. John Roberts said, "No, black president means no more racism." and that led to tons of voter ID laws and the like. But last week, they finally achieved their goal of undoing article 2, destroying the achievements of Dr. King and the civil rights movement, and giving us a ruling that will make proving racial discrimination in redistricting almost virtually impossible. I I mean, what do you think of what's happened under section two of the Voting Rights Act? I Many people smarter than me are saying this guts it.

There's nothing left for meaningful enforcement under section 2. Is that overstating it or is that fair? >> No, it is really a tragic moment in American history. Uh and I'll say although Clarence Thomas I think really would have essentially said honestly and does say in his uh concurring opinion uh it's essentially gone the Voting Rights Act section two. Uh 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.

>> Uh 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 sla 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 uh through the courts through uh 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 uh was tried 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 uh voting rights act and its meaning to shape their

districts in a way in which there was meaningful black voting power. uh and it made it impossible to sh 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 uh 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 instance, is to discriminate or dilute black votes. Uh, all that has to be said is that we're trying to create partisan gerrymandering, which the court is okay.

That's right. And the mechanisms that had existed before to essentially look at maps and say, you know, regardless of intent, this is deeply discriminatory. that that process both of of litigation and getting the courts to say that and also of allowing even uh states that want to create maps that don't discriminate uh to do so. If you're trying to to rectify discrimination, you've got to show the that the discrimination is intentional and really it's a roadmap to how to uh dilute black Americans votes to destroy black voting power. Just say it's about party, not about race. and you can mask your your intent and uh that's going to lead to I think just a destruction of um uh districts and voting maps that allowed for black voting power to 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 this is not a good thing not only when it comes to race but for democracy generally. This could trigger the largest roll back of minority representation since reconstruction. And it's also going to lead to uh a lot of Democrats fighting back, which is going to lead to a lot of conservative brothers and sisters losing representation in blue states cuz their districts are going to be eaten up, too. Justice Alo, his majority opinion claims section 2 still exists, but I'm like, well, technically Blockbuster Video still legally exists. I mean, this could be up to 10 majority black congressional districts 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 I have to just ask you they say the majority that Louisiana relied 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 go fix it. and Louisiana tried to fix it and this court's like, "No, not like that. We like the old illegal better." I mean, c can you explain how this rationale is being used to weaken protection for minority voters?

>> Yeah, the court has a a philosophy largely of color blindness that I think is the only way to understand what's going on. >> Uh color blindness, white people left and uh so-called color blindness. And so in the area of affirmative action for instance they've said look if you take race into account if you're even conscious of race then that is you know 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 yourself engaged in racism, unless, and this goes back to my other point, you can show that you're rectifying intentional discrimination. And you know, in other words, if people hid their racism well and you're trying to correct it, [laughter] well, that or even decently, well, that's not allowed. And so this idea of colorblindness really is a disaster. UCI most clearly and Justice Thomas and his juristp prudence um and and what he essentially says here which is don't get me wrong totally absurd wrong

historically wrong in every way wrong uh politically morally he says essentially that the 1965 voting rights act because it took race into account is is largely unconstitutional I think that's his view and um you know nothing could be further from the truth it's an attempt to realize the meaning of the of the 15th amendment banning discrimination based on rights, but at least there's a kind of honesty to that. You know, it's absurd. It's wrong. But but he's really telling us how extreme his colorblind philosophy is in Alto leaving open 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 colorblind in almost the same way, I think, as as Justice Thomas would have it. So, uh, the court here and it tends to do this. It it it looks less radical in 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 a way forward. It reformulated it." But then the lane is so narrow of what it what it leaves uh to show intentional discrimination so hard that it essentially eviscerates it. And so, you know, that's why this is such a disastrous decision. I want to just say something, you know, to really bring out the history. people died in order to uh pass right civil rights act and what we're talking about the 1965 voting rights act they were beaten uh the Pettis Bridge incident the the the the movement really was you willing to 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 I'm always talking about the need for citizens to respond. It we

didn't get voting rights and the protection of it by court order. We got it. >> That's right. And through this legislation and yet here they've come and destroyed it. It really is one of these moments where uh 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 oh, 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 save act 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 disenfranchised people have representation. Their standard seems really simple, Cory. Um, if race consciousness helps white conservatives, then it's tradition. But if race consciousness benefits minorities, it's

unconstitutional engineering. Am I getting this right? I'm trying to understand how John Robert's mind works. I mean this is this this whole Robert's court project of elevating colorblind constitutionalism which doesn't exist over race conscious civil rights enforcement. You know they have an argument they use for instance justice Harlland's descent in pie versus Ferguson. They believe they say the conservatives on this court in Brown versus Board of Education. So they're not uh giving the you know Klux 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 the Civil Rights Act of 1964 mean, they construe it in this color-blind narrow way that makes it just very hard to use it effectively.

And I in rewriting it, in some ways it's worse than the than than the naked racism that you sometimes see because they're really taking laws that were fought for by democratic majorities. You know, the the the I mean just to go to that's what they hate, Cy. They say they hate government. They love government. They hate democracy. For Civil Rights Act, for instance, wasn't to to protect against um uh 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 the history of them to appreciate just how bad what this court is doing is. And yet, its technique for interpreting them is to narrow to the just the words, the the text, right? And you know, in doing so, I don't even think they do a good job of that. That's

how they evviscerate what these laws really were about. So I I mean, I I know we have to move on to other things in the world, but the scary thing about this, Alito wrote that older discrimination and the lingering effects of institutionalized racism deserve, his words, much less weight. Cy, I love it when wealthy, privileged, insulated, conservative white men explain that racism isn't a problem anymore. But hours after gutting the Voting Rights Act, Rhonda Santa stated 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 in Louisiana, Governor Landry was so excited to speed rig it, he canceled the primaries. He punted the House racist till mid July to give enough time for them to draw brand new

maps. This isn't redistricting, Cy. This is racist Photoshop. This is an Instagram filter for democracy called much whiter. You know, D Santis already destroyed Florida's fifth congressional district, majority black, because if black voters can choose their representatives, Ron DeSantis 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 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 and there might have been a a moment of slavery, maybe a little light dabbling in segregation, but that's it really. I mean, he has this language that suggests, 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 see where I'm alledo and Thomas's blinders to what's going on with Trumpism to the way that Trumpism if you listen to Tom Joselyn 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 in the January 6 crowd. That's not something that's being acknowledged by Thomas or by Alito or the looking past it. And so, you know, their their myth that somehow racism is gone is

ridiculous. But also, let's just they well, you know, it's not. Go ahead, please. >> I just want to pull it out. The 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 it's um in terms of, you know, partisanship. And so if white supremacy, it did not disappear, but now it's really being given a a green light.

>> So Cy, let me get this straight because you're you're the smart one here and I'm I'm the vulgar vaudevilian. um race b race 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 bans, if we put the words national security on it, that's great. really seems Cory, this court believes America has to become colorblind 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 helped lead a scholars brief that challenged that idea and made the argument that Sodtoayor agreed with, but the court rejected that, you know, if you're engaged in 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 he when his lawyers tried to change around the structure of the the executive order and the proclamation implementing it, he actually would tweet things like, "No, I preferred the first one. That's what I'm really, you know, wanted to do." And even then, it was impossible to show or or or we failed to show to this court that there was uh ethnic religious discrimination. Well, you come now to what the court has done.

It said we have to show intentional discrimination in order to rectify uh discrimination against black voting power. Um 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 vote of black votes. >> I I you've seen that in these other areas, too. And yes, that is what this court's done. It's it really is the eraser of serious civil rights law country >> by court order.

>> Yeah, they are 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 uh bit really briefly. Um Justice Alo temporarily restored mail access to mythristoone, the abortion drug, while the litigation is continuing. Uh, a lot of folks are surprised by this because they know that Alto is part of that cabal that really does want to ban women's reproductive freedoms in all 50 states. Um, people were confused. Why is Alo giving it a stay? Corey, is that a sign the court might not be ready, at least yet, to fully embrace nationwide abortion pill restrictions, or is this Alto spacing out the outrages? You know, it's very hard to read in when the court in these procedural orders is is halting or allowing a a um a lower court uh 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 Alto 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 uh look if you allow for the the mailing of a federally approved abortion um uh uh uh 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 uh to or a restoration of Row versus Wade. 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, Alto. And I wrote when Gorsuch 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 Alto in the Dob's opinion really talking about the history of regarding a fetus as a life and and yes, as even a constitutional person that and and that opens the possibility of a court imposed eventually ban on abortion. what this specific procedural re ruling tells us, I don't think it tells us about the wider picture, which I still think is quite a danger uh not just to um abortion rights in red states, but everywhere in the United States. Well, yeah. I mean, what are the separation of powers concerns here when

courts are overriding medical expertise on drug safety? I mean, if 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'm not I'm not 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 and you know in some ways too I think the the idea of 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. And 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, you know, protected abortion through um the abortion pill and then also to say the states can decide. That's the compromise that he in 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 alive and 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 Roberts and Alto around so we never ever forget. Uh, 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 Comey. This is this is the oath in the office. Welcome back to the oath and the office. I'm John Fugal saying along with Professor Corey Brett Schneider getting very excited for our conversation with Kate Shaw coming up. But first, Cory, you know what happened? Uh, a disturbed damn fool illegally tried to attack the White House correspondents dinner. He uh, 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, "Thank God no one was hurt or all right, let's all lower the temperature or violence has no place in d." 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, Cory, the greatest threat to America is not gun violence. It's monologue jokes and it's seashells. So, let me ask you, a grand jury has indicted former FBI director James Comey over his Instagram post of seashells, which he deleted that said 8647.

We're looking at 10 years in prison for shell art. Cory, mo most presidents 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 rate 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 the the what we're seeing, the arts and crafts, but I have to say it doesn't look like it. Uh he's claiming that the that the former FBI director threatened the life of the president of the United States that is seashell CF sa unit but seen 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 um this is uh you know everybody's 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 face is absurd that this is any kind of threat. And yet, you know, Pam Bondi, as horrible as she was, you know, and I think before Tom Blanch, 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 were going to embarrass her, that we're going to, I think, and should lead to the disparment of anybody whose name is on these papers because there is no case here. 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

Ellburg, 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 uh authoritarianism. >> It's a bunch of seashells that spell out 8647. How does Todd Blanch not get disbarred someday? I mean, >> he has to be. I mean, absolutely. And you know, there there are there are junior lawyers there. We talked to Creek Barara about this, which is, you know, 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 disparment. >> Absolutely. I mean under this legal theory Corey like dump Trump bumper stickers could be illegal tips on how to hide his body right. I mean you can extrapolate this to anything you want and 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 8647 shirts? He going after all of those, >> right? >> And BL, but he's like, no, this is just just the man Trump hates. Just the man Trump hates. We're exploiting this assassination attempt. That was an assassination attempt. I I mean, if dozens of people sell shirts and hats with the same phrase, selective prosecution seems to be a bit of a constitutional issue here. Yeah. No, just a little. It's just screaming. It's hard to show selected 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

um I am Spartacus moment too where I'm seeing a lot of on Facebook and social media people right oing their own 8647 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. Um, and you know, not just 8647, but 86 and whatever example you want to come up with, you know, that would also be a death threat. And you know, now Blanch says he has more evidence. I I just I just don't think so. I don't think that in any remote universe is the FBI, 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 the citizenry that they can get away with it, that they're just in their own universe. The president is in control of the Department of Justice. By the way, they have their future of Donald Trump. >> So, the Department of Justice is completely gone. >> Oh, yeah. Yeah. But here's the weird thing. James Comey's daughter, Moren Comey, 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 cuz I want to see more fire people suing this administration. But one day later they reindicted her dad. What a miraculous alignment of the stars. Cory, 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.

He is yes. What he guided criminal indicted four times convicted criminal convicted once in the New York Stormmy Daniels case. And his mentality is you know he was also he guilty of tax guilty of tax fraud and mail fraud insurance fraud too. Don't leave that out. Go ahead. >> I ju I just want to want to say you know go back to 2016 when he was campaigning. The way you and I met, John, is I wrote a piece called Trump versus the Constitution, a guide where 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 were guilty of crimes is now going after the family of his uh his oppo his um you know, a whole family that he regards as his opponent, >> of course. said, "At this rate, the next indictment will be for hostile macaroni art." But, uh, 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 there's 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 figured 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 Kim Alan 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 riskaverse about politics about putting political comedy on the air and you know if they're weighing the their instinct against it as opposed to the writings that will come with it uh and part of that balance involves I might lose my we might lose our license uh yes 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 Comey case he's not going to succeed in revoking the license that's not the point that's not The point is to to intimidate Nixon. I I have to say one of the things I I keep seeing in the files is that, you know, I didn't care at all about Ellberg. He says that, you know, as a person, I wanted to shut him down.

I thought he was a threat. But I also wanted to intimidate everybody else like him. And that's what's going on here with Charm. It's not just about Comey. 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? Cy 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 affiliates and Sinclair 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 a somebody who's, you know, proud to have

taught at Brown for 25 years. But the most important thinker about the First Amendment, the person who who the courts have repeatedly said gave us our modern first amendment is a man named Alexander Mikljon. He was a professor and dean at Brown, you know, years before me. But he was a critic too of the shutdown of communist and leftist speech. He wasn't a communist, but he believed that we all have the right to hear all viewpoints. That was his argument. all opinion 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 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 Comey case? What's going on in the Jimmy Kimmel case? The president doesn't like not only their opinions but but their criticisms of him. It goes back to 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, uh that would be a step too far to to

allow these political prosecutions to allow this uh in the end if they really did revoke the license. So, I think here, you know, it's like the birthright citizenship or the tariffs case. Trump is so far out on a limb that I do believe the courts would vindicate 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 quizlings and suckups who propped up this authoritarian douchebag regime. Uh I don't mean to get too clinical and legal, Cory. Uh okay, let's take a quick break. When we come back, let's talk with Kate Shaw. Don't want to keep her waiting. This is the oath and the office. Welcome back to the oath and the office. You know, uh professor, we're seeing all these clashes between this administration and institutions historically designed to operate with some independence from uh 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 uh to welcome today's guest.

>> Uh what a pleasure to uh welcome a friend and somebody I've collaborated with and somebody I admire. Kate Shaw uh is a professor of law at the University of Pennsylvania Kerry Law School. She's also had multiple positions in government including clerking for Justice Stevens and uh working in the White House Council's office under President Obama. uh I admire her work and her scholarship which has appeared in places like the Harvard Law Review, but she's also uh really a pioneer in speaking to the public about the Supreme Court both through her pieces in the New York Times and the Atlantic and of course on her amazing hit podcast Strict Scrutiny. Uh we've of course had um uh Melissa and Leah as well and now uh so glad to welcome uh Kate Shaw to the Open the Office. So Kate, welcome to the Open the Office. Um, thank you so much Corey and John for having me and I'm so happy to get to round out the triumvirate of my co-host. So, we've now we've now all made appearances, but it's great to be here.

>> Uh, so great. I mean, I I think we'll just jump in uh if you don't mind. And actually, I I I wanted to begin by talking about this um case that the Supreme Court will have heard when uh oral argument will have happened by the time listeners are hearing this about temporary protected status. Uh and you know it relates to to the theme of course of of the president and his rhetoric um talking about in the most degrading terms um uh Haitians and and and people from uh countries that he has um of course uh labeled with epithets.

So talk about how the president you're you're an expert I should say to our listeners uh 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 how does his rhetoric and his awful uh uh uh degrading of people based on national origin relate to this case and can you just introduce it and tell us 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 um it will have been argued uh last Wednesday when this show airs um involving the administration's decision to cancel temporary protected status or TPS. Um 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. Um so, think things like you know war, natural disaster or things like that. So this designation is something that you know executive branches have engaged in for decades. Um

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. Um so coming into office the administration moved pretty quickly to cancel TPS in a number of places. um at an issue in these two cases consolidated for argument are the Haiti and Syria TBS designations. And so late last year uh then Secretary Christy Gnome um announced that she was cancelling the designation for both of those countries.

Um without much explanation essentially um and that is a key kind of dynamic in the case. Um so lawsuits were filed both by you know Haitian TBS recipients and also Syrian TBS recipients and in both cases the district courts found these decisions were made these determinations were made without following legal process. So just to focus on the Haiti case which is a little bit more uh kind of fully developed the lower court in DC found both that 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 reason decision-making right agencies are supposed to take in evidence and based on that evidence make decisions that they then explain and kind of both sides of that didn't happen here they didn't really conduct a process that actually assessed the conditions on the ground in Haiti um you know if they had they probably would have noted things like the State Department still has a don't travel advisory in effect for Haiti. Um, and when it came to kind of explanations, there just wasn't really a reasoned explanation provided. Um, 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 the that government treat persons equally, right, under the equal protection clause. Um and the finding the district court made there was that not you know that it appeared highly likely the administration was driven by bias animous dislike of non-white immigrants essentially and hate in particular in making this decision. So that's the question before the court in this case.

>> Uh and thanks for the explanation and if I hear you right there there are two related issues. One is that even administrative agencies have to act in a way that is not arbitrary and capriccious that's 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 and capriccious but well if it's 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 president's bigotry uh I mean how do you how do you see this going one uh you know case that you and I have talked a lot about and that listeners know well that I worry about having a 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 um that he wanted a complete and total shutdown of Muslim immigration racist and anti-Muslim rhetoric when it was rewritten to try to hide the animist he said well I prefer

the first of these travel bans the more obviously um biased Um and you hear some of these arguments from the administration saying uh citing that case and also saying you can't look at the really it's what's not it's not relevant you know these statements. So I mean what do you how do you see the court weighing weighing this? I mean there are differences of course with Trump versus Hawaii. >> Yeah. I mean I so a couple things. One the administration is actually first saying you can't you courts can't even review these determinations at all. They are totally within the discretion of the executive branch. Um, I don't think that's likely to prevail. If it does, it would basically mean that the administration could just by fiat grant extend on mass or revoke on mass this temporary protected status designation.

Um, and it would make the statute that's supposed to govern that status basically uninforceable right by courts. Um, but if the court kind of gets past that and says, "Yes, we do get to review what the administration has done here." Um, I think it's definitely the case that the decision by the by a majority bare majority of the court to allow Trump to implement the third iteration of his travel ban back in the first Trump administration um 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 a decision like this to kind of probe the motives of executive branch officials like the president, like the secretary of state or homeland security. Um, and I think that's an overreading of Trump versus Hawaii sort of as 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 vs. Hawaii." That's a little bit in the

weeds, but I 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. Um, and and finally, I just when we're talking about a a constitutional question, go the motives of government officials are relevant, right? They're relevant in protection cases. They're relevant in First Amendment cases. And when you have officials saying things like, >> "No said, "We don't want killers, leeches, and entitlement junkies." Trump has talked about hole countries.

>> Yeah. Haitian immigrants themselves were singled out for slander with the accusation that they were eating pets in Springfield, Ohio, um by multiple administration officials. Um and it can't be that we assess whether the equal protection guarantees of the 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. Well, it's also critical the media not put blinders on in a case like this because you have just dropped so many factoids about this case that most mainstream media conveniently uh doesn't have time for. Again, the State Department, our state, Trump's 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 and been 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. Um, these Haitians, majority Christian, as you mentioned, are the same people the president and vice president lied about with this vicious racist smear even after the Wall Street Journal reported it was a lie. They continued knowingly. And JD Vance actually said he knew it wasn't true, but he was doing it for a greater purpose, which has to come up in court at some point, I'd hope. 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, right, that that does seem to kind of reaffirm that the president does not have cart blah to decide to sort of implement his policy preferences without regard to legal process and the substantive limitations that statutes and the constitution place on government. Um 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, so let me just say in the other kind of TPS terminations the government uh has made include a Venezuela TPS designation that was also invalidated by a lower court. And 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 roundly criticized for doing

that without any explanation. And when these cases came to the court, I think it was, you know, 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 set these cases for argument. So, you know, I don't want to give the court a cookie for doing the bare minimum. Like, they should listen to arguments about whether to terminate this long-standing status. In effect, for I think it's 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 this 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 graduate students and lawyers. I mean, the plaintiffs in these cases are just like hardworking, upstanding contributors to their communities, and that's who the

administration wants to relegate to this uncertain fate, and that should matter. >> I should also mentioned 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 health care system of some regions in their districts. >> Yeah. Right. But it just goes to show 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.

>> This is why this is so terrifying to non-legal minds like mine. Why I would turn to the two of you because I kept thinking if the court accepts this theory that that [clears throat] they have no role reviewing this then what precedent does that set beyond immigration? This keeps me up at night. >> Yeah. And as Kate says, you know, their their argument in Trump versus Hawaii was, well, these people are outside the country trying to come in and the president usually has lots of deference given to him or her in matters of foreign policy and it'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, well then what is it doing? What is it saying about any constitutional constraint?

It's one of these uh do or die moments where whether or not we have an equal protection clause, whether or not we have enforcement against arbitrary and capriccious policy really is now in front of us. I mean, I wanted to pivot a little Kate, but you've already brought it up. I mean, do you think that the the worries about the uh shadow docket are hyperbole? We're hearing some of that. Oh, it's just the court, you know, engaging in in some procedural maneuvers. Or do you worry that it's a way of eviscerating 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 uh the stripping um of temporary protected status is is not lawful, but that requires, you know, seeing the arguments and hearing the arguments. So, I mean, what's your thought about that?

Is is the shadow docket itself a kind of danger to to law in a way that we're more secure when we hear these arguments, when we see full opinions? >> Yeah. 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 25ish 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 recent opinions for many of these cases. Many of them are disposed of with like a one-s sentence order. And that's when, you know, even where people's lives and liberty are fundamentally at stake. The Venezuela TPS termination, the decision to allow the administration to send individuals to third countries, places they have no connection to, kick all transervice members out of the military, cancel funding. Right? So, some of these have a 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. Um, 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 TBS 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 when the court schedules a case for argument. Um and I think that means that they it escapes the substantive rulings they issue escape kind of public criticism and >> exactly >> and I think that is in part the point.

Um 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 of it and they need to do much less on the shadow docket. >> I think you can find an Go ahead. So sorry. >> No no worries. I was going to say, Kate, I'd be remiss if I didn't tell our listeners and ask you about um your confrontation or or colloqui with Josh Holly on uh in Senate hearings about the judiciary committee. And I'll just set it up. We could play the clip as well.

But uh you know one argument against what all of us are saying about the shadow docket and its danger to democracy is well these lower courts have been so partisan in unprecedented ways they're stopping uh uh uh President Trump's agenda and you know we need ways of overcoming this partisanship from the the lower courts and you you know in one of those moments that you you know just had the answer right. I I'll let you set that up, but can you tell us about this viral moth that is oriented with you and Senator Ali?

>> Um, sure. Well, so I was right. I was testifying in a hearing that was about kind of nationwide injunctions. Um, it had some tendentious title. The the mo I can't I can't remember the title now, but um but but it it it stacked the conversation, right? That it was the premise of the hearing was the lower courts are out of control. Um, and you know, these nationwide injunctions need to be reigned in. Um, and um, and I just, you know, 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 Holly sort of pulled up a whiteboard that had a chart that that showed how many more injunctions the Trump administration had faced as compared to, you know, previous, you know, most recent presidents, both Democratic and Republican. Um, and he just said, "Doesn't this isn't this doesn't this clearly mean the courts are biased against President Trump?" And I just said something like, "I think have to consider that this president is engaging in more lawless action than

other presidents." Um, that seemed pretty clearly to be what the chart showed to me. Um and also the kind of you know to to to support the point a little bit like these were presidents of both oh sorry these were courts right judges sitting you know 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. Um, and it just sort of I think fundamentally undermined the premise that this was somehow, you know, partisan antipathy to 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. Um, 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 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 there really is no precedent. And I think you're right. The lower courts are biased towards the law, not the felon.

>> Yes. Well, I mean to answer your 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. So again, like dozens in the course of two years and this was, you know, in administrations past the this kind of emergency request for relief in particular from the federal government would basically come about, you know, once every other year. 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 presidencies of these grants of this kind of relief. And here you have in one year 25. Um, so there's just no comparison. And and it's it's it's an interesting kind of point about sort of nomenclature and terminology. I do think the words are powerful. And so shadow docket I think is pretty good in that it does sound a little more ominous than like >> Yeah. Okay. like interim or interim docket which is designed to sort of drain like the blood >> has some hard continents. It's got a K sound in it. Yeah, it has some punch.

>> But I I I hear you that we could workshop it uh to find something sort of even that that that better conveys just how alarming this development has been. >> I mean I certainly agree. I think we've all been in agreement that the idea of the court hiding its reasoning has just enabled it. uh on your other extremely important point which you also made to Ali in this unprecedented assault on uh democracy on the law. It allows them to really hide uh what their reasonings reasoning is in order to approve the president's policies and and there's no accountability at all. But just to shift a little bit and into um uh I think what'll be our our last topic. Sometimes when the court does give its reasoning, we also have to worry and worry about that cases connected to the unitary executive and of course the firing the the Federal Trade Commission case, the firing of the slaughter case that that um we're going to have a decision on. Uh you know, is this an instance where we should worry too about where the court

is headed? uh even if it's more transparent jurist prudence. the I know you're interested in in the related question of the independence of the civil service and here we're talking about the independence long-standing independence of independent agencies and those who lead them uh and the Republican party uh at least since the um meets uh uh uh attorney general period has had a long-standing 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 do you see this as inevitably going uh the way of the administration? And how much, you know, is this itself a kind of long-standing threat um to independence and to democracy itself? Or or I'll ask the same question I about the shadow docket.

Is it not really something that we need to worry about? >> Oh, I I'm very worried about it. Um, so wait, so we have the two cases that you referenced, one involving the 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 um the president claims the power to make these removals, right, to fire these officials. The arguments are a little bit different. And in the FTC case, the the president is saying, "I have the absolute right under article two of the constitution to fire, you know, an official who's a head of an independent agency." And the statutes that have sort of long constrained the president's unilateral authority to make these kinds of firings are unconstitutional because they encroach too deeply on presidential power. and the Supreme Court's case law to the contrary, including this nearly a century old Humphre's executive case, um are incorrect and inconsistent with a correct understanding of presidential authority. The Fed case is a little bit different because there the president is not saying I have absolute authority to

remove a governor and the Fed. Um I there is a statute that says that Fed governors 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 um you know, he has satisfied the statute. He's not saying the statute with its requirements of for cause um is unconstitutional. So, it's a little bit different. Um, I think there's a good chance the court rules for Trump in the FTC case, overrules Humphre's executive, says he can fire Rebecca Slaughter and the heads of all similar independent agencies kind of at will, and that is an enormous deal in and of itself. Um, 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 would it would, 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. Um, but I either even if that's right and certainly if Trump wins in both cases, I 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 I think would be enormously consequential. So so I do think that that that I I'm not sure who is suggesting that this is these are not really important cases. But I I would defy them to to defend that position. Um

because you know Trump versus United States enormous opinion handed down before Trump returned to office giving you know outsiz authority to the president. I think these would be in that category of just affecting sort of still further transfer of power away from Congress and to the presidency. >> Les I'm sorry I just want to 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 I'm not counting on his vanity to save us anymore. I really was spent a long time, Miss Shaw, 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.

>> Yeah, I I I think I too sort of labored under the view that that that was at least a driving force for Roberts and I and I I I too have sort of been been parted with that. >> Sorry, value optimizer. >> No, not at Well, I mean, I was going to ask, yeah, not so much about the view that this isn't a big a big deal, but that there is an argument for the unitary executive. Pretty straightforward, which is to say, look, there are three branches of government. What branch are these independent agencies in? They're a kind of uh, you know, uh, beyond the reach of democracy and 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 just kind of uh 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, who's going to improve people's lives or, you know, at minimum get bad regulations maybe. >> We'll talk another show about that, Cory. But go on. I'm just talking in that in the mind of those, you know, that we're creating theory. But I mean, help me wrap my and our listeners minds around the idea of the way that John Roberts sees it. I mean, is he he's obviously not stuck in the 1980s. Is he not aware of the kind of threat when you have a president like this that that handing over this amount of power has?

Is it really that naive in what he's doing? Is it a commitment to a long-standing theory that he's always believed in and he feels like he can't get rid of it or why? Why is there no recognition of the danger of handing over this enormous power? Of course, in Trump versus the United States in the immunity case, you know, if they were naive at that time, now they have to see the the the destruction that they brought about. >> I I wish I had a better answer to this question, Cory. I mean I yes I I would 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. Um, but I think that the shadow docket kind of data that we've just been talking about is inconsistent with that theory that 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 recision 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. Um and and so I I I don't I mean the tariff case is obviously an important kind of countercurrent in that that is a big ruling against the president. Um, and maybe that suggests that that, you know, some of this is landing for Roberts in some way. Um, but I do think that it'll that that we will need to see with these two presidential control and presidential removal cases just where John Roberts is visav this president. I I I again I I I'm not I have a hard time jumping inside of his mind. And I do agree, Cory, 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 a degree virtuous, right? or at least has has some sort of basic civic virtue. And um and I think that we have all seen just how illprepared the system is for a president who utterly lacks that

quality. [sighs] >> Yeah. Welcome to the founders didn't really think this through. Uh can I 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 is can be consistent with her system of separated powers. Sure.

>> Um, so long as courts continue to act as a check on unlawful action and overreach and so long as Congress, >> thank you. >> 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. So the court just bears, I think, enormous responsibility, not just in cases like Trump versus Hawaii and Trump versus United States, but in lots of cases that don't have Trump in the caption and some of them are way lower profile. The court has sort of hamstrung Congress and actually meaningfully overseeing the executive branch. So, and I'm a former White House lawyer. I 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 core views. >> Yeah. I mean, I don't think that we have to get rid of the presidency alto together 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 uh the Supreme Court makes a series of these decisions and enables a president that clearly does want to be uh well, Henry used the phrase crown himself a monarch. That that does, I think, capture a lot of Trump's ambition. But 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 rein it in and make it subject to the rule of law. Certainly the immunity case and the instruction that it's wrought has to be uh pushed back on and we've got to think about maybe through

legislation including a lot of uh checks and balances. >> Uh Kate Shaw, it's been such a 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 uh historical uh together and uh to have you join us on the oath in the office has has been an honor. I'll mention again your great podcast which I had the opportunity beyond strict scrutiny uh and just thank you for joining us uh Kate Shaw in the oath in the office.

>> Pleasure to be here. Thank you so much for having me Cory and John. >> Well thank you so much Kate Shaw. Everybody do yourself a favor and subscribe to the podcast Strict Scrutiny. Uh, and professor, how could 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.tretchnegmail.com on Blue Sky. I'm democracyp. And of course, subscribe to this podcast. Uh, subscribe to the Oath in the Office wherever you get it. You could watch it on YouTube. If you haven't found us on Substack, there's an oath in the the Oath in the Office Substack. Uh, subscribe there, too. Uh, and you know, if you want to see what um the Brooklyn Public Library was praising, you can you can buy my books, The Presidents and the People, Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It. Check out the list from the Brooklyn Public Library, everybody. 250 for 250, featuring Professor Corey Brett Schneider. You owe 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." Um, I'm on SiriusXM Progress uh five nights a week with Corey on Mondays and uh I also do a Substack and my book is called Separation of Church and Hate. So, please and my podcast is called The John Fugles Podcast. So, uh so thank you. And I want to thank Wendy and Beaolf and everyone who helps us put the show together every week. And most of all, I want to thank you, my influential star, Professor Cory Brett Schneider, for all you do. I'm John Fuglesen and we will see you guys next time on the oath and the office. Please be sure to subscribe and tell your friends.