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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. As many of you know, during these first few months of the Trump administration, we've been following two paths on this show, as I think many people have. One is the blizzard of policies coming from the government, their pros and cons, and impacts on people in a time of radical change. The other is the question, is this what democracy looks like?

So much of that is being played out in court with literally hundreds of lawsuits being filed since the inauguration, just in the last day, for example. We've had so many days like this. I'm going to focus on the last 24 hours for a minute. We had court activities on Trump's exertions of power against law firms, the media, New York State's mass transit funding, and his desire to deport migrants not just to their countries of origin, but to third countries, particularly South Sudan.

On the law firms, as the New York Times reports it today, if you haven't heard this one yet, a judge struck down his executive order seeking to crush WilmerHale, one of several firms the president says have wronged him or have done work for his political opponent. Judge Richard Leon of the Federal District Court for DC ruled that the order was unconstitutional and "Must be struck down in its entirety."

On congestion pricing, as Gothamist reports it. A Manhattan federal judge on Tuesday barred the U.S. Department of Transportation from retaliating against the MTA over the agency's decision to continue charging its congestion pricing tolls despite a federal directive to shut down the program.

There was the new lawsuit filed yesterday by NPR and three Colorado Public Radio stations claiming Trump's executive order seeking to defund the network because he doesn't like their editorial choices is a violation of the freedom of the press guaranteed in the First Amendment to the Constitution. That's three.

Number four on deportations, we have this CNN headline, "Trump asks Supreme Court to make it easier to deport migrants to South Sudan, and other third-party countries. The CNN report says the appeal arrived at the Supreme Court days after the policy drew significant attention when the administration attempted to transfer detainees to war-torn South Sudan without a meaningful opportunity to contest their removal to a place where they might face torture," from CNN. Now, none of these cases are permanently resolved at this point, but I mention them as one 24-hour snapshot of the judicial branches central role right now in determining if this is what democracy looks like.

For University of Michigan law professor Leah Litman, "The United States is now in a constitutional crisis even without Trump openly announcing that he won't obey court orders. Litman wrote a new Atlantic magazine piece, co-wrote it called How To Hide A Constitutional Crisis. She has a new book that argues the Supreme Court is running more on vibes than on the law these days. The book is called Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes.

If you haven't been in her law school classes at the University of Michigan, and you're thinking, "I know that name. Where do I know that name?" You may know Leah Litman as one of the three hosts of the legal affairs podcast Strict Scrutiny with Melissa Murray and Kate Shaw. Like with her presence there, the book has gotten noticed for not just its legal analysis but also its occasional humor and Litman's pop culture literacy. Professor Litman, thanks for joining us. Congratulations on the book and welcome to WNYC.

Professor Litman: Thanks so much for having me.

Brian Lehrer: I'll ask for your take on some of those court proceedings from the last day as we go, but let me start with your book as we enter high season for the Supreme Court and its decisions from now through the end of June. You used the word vibes in the title and in the book, and it's getting a lot of attention. How do you mean vibes as opposed to law?

Professor Litman: By vibes I mean to draw a pretty pointed contrast with what most people think of as law, which is objective or determinant. Vibes are more like feelings or the talking points of a political party or the zeitgeist of the parties you're attending. It's those sources that I actually think the justices, the Republican justices, are drawing from as they are fashioning the law. Sometimes they say that in oral arguments, sometimes they even write it in opinions. I wanted to call attention to the extent to which they are doing this across a range of different areas.

Brian Lehrer: To that point, you seem to argue flat out in the book that the Supreme Court's conservative majority is making many decisions not based on their interpretation of the Constitution, but on their political preferences. I guess that's part of what you just included in vibes on their political preferences on issues ranging from voting rights, to gun rights, to reproductive rights, and other things. How far do you want to take this argument that those justices are doing politics rather than law?

Professor Litman: I think they are doing that quite frequently, at least in the politically salient big ticket cases, high profile cases that a lot of people follow. Just to take one example, a few years ago, the court had a case about whether California could require unlicensed pregnancy crisis centers or clinics to disclose the objective fact that they are, in fact, unlicensed. The government can make private entities disclose a range of things, like their products cause certain risks.

That's never been thought to be a First Amendment violation. Yet the Supreme Court said those usual rules that allow the government to require disclosures don't apply to that case because the justices insisted abortion is anything but an uncontroversial issue. They basically made an exception to the usual legal rules based on the Republican Party and conservative legal movement's feelings about abortion.

Brian Lehrer: I'm always interested in shoe on the other foot scenarios. Could you say the same thing about the more liberal justices on the Supreme Court? If they routinely come down on the other side of these same issues before the Court, are they also engaging in politics and vibes rather than law?

Professor Litman: In the book, I highlight some similarities that people say exist between the current court and the Warren Court, the most progressive Supreme Court really throughout United States history. Some of what led to the rise of the conservative legal movement and parts of the Republican Party was disappointment and despair with what the Warren Court was doing. They argued that that court was making decisions based on their own ideology and political views rather than the law.

I think what is different about the current court is one, the extent to which they are willing to ignore settled and clear law in order to advance a political project. Second, the extent to which their decisions are now catering toward an increasing narrow segment and minority of the country in a way that just isn't true of the Democratic appointees or wasn't true even of the Warren Court during its heyday.

Brian Lehrer: I think many legal analysts might say, yes, it looks political and many constitutional arguments, because that's who bring the suits and crafts the arguments. The Justices really are seeing the Constitution differently. Does the right to abortion flow from the right to privacy found in earlier rulings? What does that flow from that the founders had in mind? Or did the founders not explicitly address anything like reproductive rights? Is political spending by corporations and unions a form of protected First Amendment speech, as they held in Citizens United?

There was also John Roberts' famous line from his confirmation hearing about calling balls and strikes not making law. We know many of the rulings, including Citizens United Voting Rights Act cutbacks, that he's been on the conservative side on. I could go down the list. Some people will say they actually have earnestly different views of the Constitution rather than being political or partisan actors on the politics. That's an important distinction to not discredit the Supreme Court more than they should be discredited. Can you address that distinction or alleged distinction?

Professor Litman: Yes. I would say two things. One is let's assume for a second that the judges and justices are indeed looking at cases based on interpretive approaches to the law that they select just because they think those are the right approaches. I think even if that is the case, that still allows a Republican Party to select judges and Justices who, because of their interpretive methodology, they are pretty darn sure are going to reach particular results.

I think that raises serious questions about why we would allow the Supreme Court to be deciding those questions rather than the political branches that are more directly accountable to the people. If either way, the political actors in the Supreme Court or Congress are going to be reaching decisions that track the views of their political party, why not have those decisions made by the body in which the people can actually weigh in?

Second, as I talk about in the book, I think the rise of different conservative approaches to the law, including originalism, actually complicate the story that any approach to interpreting the Constitution or federal law is divorced from the results it produces. Indeed, the rise of originalism during the Reagan administration was actually celebrated and propounded by officials in the Reagan administration as a way to roll back the civil liberties and civil rights that the Warren Court had announced.

They announced that a jurisprudence of original intentions was a way to advance the social policies and social issues of the Republican Party. I also think it's just a natural decision-making tendency to believe, well, I know that the Constitution, for example, does not protect the right to an abortion. One way of assessing whether you think an approach to interpreting the Constitution is correct is whether it is able to produce the results you know to be true.

I think for all of those reasons, it's just more difficult to separate a Justice's views about the law or approach to interpreting the law and politics or ideology.

Brian Lehrer: Listeners our questions and comments line is open for University of Michigan Law Professor Leah Litman, author now of Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. Call or text 212-433-WNYC, 212-433-9692 can be on the book. It can be on those four court proceedings from the last day that I laid out in the intro. We'll get to some or all of them with Professor Litman, depending on time.

Or if you're a listener to her podcast, Strict Scrutiny, anything you wanted to ask her as you listen, but a podcast can't take calls. 212-433-WNYC, 212-433-9692. You mentioned the Warren Court and its heyday in the 60s and 70s. You also cite a time in the 1930s when the Supreme Court seemed to bend to pressure from President Franklin Roosevelt in a certain way that may be instructive for today. Would you go over that history and its relevance as you see it, a little bit for us?

Professor Litman: Yes, absolutely. That's a historical episode that is known colloquially as "The switch in time that saved nine." Basically, in the lead up to the 1936 presidential election, the Supreme Court was striking down President FDR's New Deal programs that were designed to address the Great Depression. They were also striking down state laws that were designed to counteract the effects of the Great Depression, like minimum wage or maximum hour laws.

In light of that, the Democratic Party, including President Roosevelt as well as a Senate majority leader, pretty openly campaigned against the Supreme Court. Too did organized labor. There were famous marches and protests that were organized in which the Supreme Court was the primary target at the Democratic National Convention. In the lead up to the presidential election that year, you had the Democratic Majority leader saying, "Liberty, art thou blind and dumb?"

Basically, accusing the Supreme Court of acting like blind mice, which was one of their public monikers for ignoring the realities of the Great Depression. After FDR wins a landslide victory in the 1936 presidential election and Democrats retain sweeping majorities in the House and the Senate, FDR proposes to add a certain number of seats to the Supreme Court for every justice above a certain age. That would have allowed him to get a majority on the Supreme Court who would be willing to uphold the New Deal era programs. What happens?

Basically, within weeks of his fireside chat to the country about his court expansion proposal, one of the justices, Justice Owen Roberts, switches his vote and starts upholding New Deal era programs as well as state laws like minimum wage laws that were designed to counteract the effects of the Great Depression. That is an episode where public opinion and political agitation directed at the Supreme Court produced a change in the Supreme Court's case law. It's actually quite stunning.

In the language of the opinion, the Justices basically adopt the language of their critics, saying they can no longer shut their eyes to the plainest facts of national life when the Justices had been repeatedly depicted and characterized as blind mice or blind old men. What does that episode tell us about today? I think some people say, well, that suggests that enough public pressure and public opinion could change the Supreme Court and maybe lead them to reach different decisions.

I think what people miss about that is the reality that at the time, in the wake of the 1936 presidential election, you had a president who had won a decisive victory, as well as supermajorities in both houses of Congress. The threat of court reform and court expansion was very real. That's just not going to be the same today, given things like Senate malapportionment or partisan polarization. I don't know that sweeping public opinion offers the same kind of check on the Supreme Court today that it once did.

Brian Lehrer: I want to let the listeners know that you characterize what you think Trump is ultimately after in how he's reshaping government, that's causing all this legal conflict. What's your take on what his vision for American governance or American society is that he's trying to push?

Professor Litman: I think it is partially an effort to roll back the gains of the 20th and 21st centuries. I think a big idea that Donald Trump often traffics in is the sense in which, for a certain constituency within the modern Republican Party, namely white conservative men, that things have been taken away from them to which they are entitled, namely, outsized political power or social capital or economic opportunities. Those things were taken away in part because new groups were included in American public life, in the job market, in society.

I think it is, in part, an effort to channel that feeling of entitlement and grievance that tracks a lot of what the Trump administration and Donald Trump are saying and doing. I think a part of that is an effort to impose a political orthodoxy on society, civic institutions, the media, higher education. To punish anyone who doesn't fall in line with that orthodoxy and really remove possible sites of opposition or other sources of authority that could be used to challenge them and their orthodoxy.

Brian Lehrer: To that description, said recently about the Trump-- well, I characterized what Trump is doing as the Trump revolution taking place right now. A listener texted, "Well, really, you should call it a counterrevolution." I wonder if, with the description that you just gave of what you think he's after if that's a distinction worth making.

Professor Litman: I think it is absolutely fair to characterize it as a counterrevolution. I think in the book, I note how a lot of the modern Republican Party was born consciously and developed as part of a response to different civil rights revolutions. For example, as part of a backlash to feminism, the Republican Party leaned into the opposition to the Equal Rights Amendment, which would have prohibited discrimination on the basis of sex under the Constitution.

Similarly, on matters of voting rights or race, the Republican Party consciously decided to appeal to white voters on the basis of race as a way to split cross racial coalitions and to adjust for the fact that the Democratic Party had managed to secure the passage of the Civil Rights Act and the Voting Rights Act. I do think a lot of what we are seeing is a counter-revolution to civil rights movements and important gains by groups that, again, were not always included in American public life.

Brian Lehrer: Another two words I would like you to parse because I saw you parse them. You keyed on something some conservatives say sometimes, that the US is a republic, not a democracy. A republic, not a democracy. Many listeners may not know what the difference is even meant to distinguish between. How do you hear it?

Professor Litman: When I hear that phrase at least being used by a lot of officials within the modern Republican Party, it is being used as an excuse to disregard the preferences of a majority of the country. It is being used as a way to justify their policies, which do not have majority support. Sometimes it is being used as a way to counteract criticism of some pretty cruel or horrific policies based on this idea that essentially sometimes the government has to trammel over people and their preferences and their views in order to secure, as these people often say, liberty.

Of course, our country is not a pure democracy. We're supposed to be a liberal constitutional democracy where simple majorities just can't do some things like strip away certain people's rights or their ability to exist. I think too often the we're a republic, not a democracy moniker is being used to take away people's rights or to undermine democracy itself or the political process.

Brian Lehrer: My guest, if you're just joining us, is University of Michigan law professor Leah Litman. She's also cohost of the legal affairs podcast Strict Scrutiny, and she's the author now of Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. Mike in Manhattan, you're on WNYC with Leah Litman. Hello, Mike.

Mike: Hi, Brian, Leah. It seems so obvious to me that the six conservative justices on the Supreme Court are all this particular type of observant Catholics. That's not a coincidence that all six of them come from this, because it's just a list of people that have been given to Republican presidents for quite a while now from these organizations like The Heritage Foundation and these Project 2025 people, where they are explicitly saying they want the organizing principle of the United States to be this theocracy.

This is not some crazy conspiracy theory. These people are saying it. If anyone has the time, there's a documentary on Netflix called The Family that I think is really instructive. Where Trump comes in is he's willing to make a deal with whoever will give him what he really wants, which is power and money. He doesn't really care about these religious and conservative views. He doesn't have that kind of integrity and that kind of conviction about anything.

He'll say to them, "I'll put the justices on that. You want me to. They can do what they want as long as they give me power." They give him immunity and all these other things. I don't hear anybody talking about this. It's not a coincidence that those six justices are all of this particular Catholic bent. I don't mean to be anti-Catholic at all. It's just Project 2025 and The Heritage Foundation, and these organizations have been developing these lists for years.

Brian Lehrer: Let me jump in, Mike, and get a response for you. First, Professor Litman, do you agree with his characterization of those six justices in terms of their religious affiliation?

Professor Litman: I hesitate to say all six are the same as far as their religious beliefs or practices. I do, however, think it's right that there has been a fusion of the rich and reactionary elements of society in the modern Republican Party, and that that has been seen quite clearly on the Supreme Court. When the Republican Party announces the decisions that they are most concerned with, it is oftentimes the decisions that are opposed by conservative religious believers.

Roe vs. Wade, as well as Obergefell vs. Hodges, the marriage equality decision. I think it's right that the Republican Party and their judicial selection machine has fused the social conservatism and religious conservatism elements of the Republican Party and the voters they are trying to appeal to, as well as the richer segments of society. The justices, I think, their decisions track both of those lines.

Brian Lehrer: Fred in Maplewood, you're on WNYC with Leah Litman. Hi, Fred.

Fred: Hi. Thanks for taking my call. I'm a lawyer, and I'm very much in agreement with the professor's views on these matters. One thing she said was of interest, and I wonder how it could be attained. She said, and rightly so, that the justices of the court, the conservative majority, are playing to a republic opinion, and that's driving much of their decisions. I believe I heard her say that, well, it would make a lot more sense for members of Congress to make these decisions. They are also driven by public opinion, but at least they are elected.

Now, is that a serious proposal? I don't see how the power of the judicial power to make decisions about laws can be transferred to Congress consistent with separation of powers under our Constitution.

Brian Lehrer: Thank you. I'm not sure I totally understand the question, but professor, maybe you do, lawyer to lawyer.

Professor Litman: Sure. I'll try to say one thing, which is if you think about questions like what kinds of laws Congress can enact under the Reconstruction Amendments, for example, I think that's a key area where I would like to see the Supreme Court give Congress more latitude to try to weigh in and define what rights we all have under the 14th Amendment. What the Supreme Court has said is Section 5 of the 14th Amendment allows Congress to enforce the provisions of that article.

The Supreme Court has said, well, what Congress can enforce is only those legal violations that we Supreme Court agree violate the Constitution. I don't think the Constitution should prohibit Congress from adopting more prophylactic protections for some constitutional rights or from protecting more expansive visions of constitutional rights under the Reconstruction Amendment. That's just one example of the type of question that I would want to see Congress to be able to weigh in more versus the Supreme Court.

Brian Lehrer: Well, further to the callers and Fred, thank you for your call. Use of the term public relations, you also seem to describe or suspect the court of playing to what I might call public relations. Making some sort of anti-Trump decisions at certain times this year to provide cover in the press for bigger pro-Trump decisions that they make around the same time. Am I describing that right? If so, that's pretty cynical.

Professor Litman: You are describing that correctly. It is cynical, and it is something that I honestly believe they do, just to take one example. Last week, we got this bombshell due process ruling where seven justices rejected the Trump administration's views about what kind of notice they had to provide individuals who were subject to the extraordinary renditions to El Salvador.

Almost 48 hours later, after a weekend of great news coverage for the Supreme Court and how they had enforced due process and stood up to the Trump administration. The Supreme Court's Republican justices allowed Donald Trump to remove temporary protected status for more than 300,000 Venezuelan nationals in the United States rendering those people undocumented and potentially subject to deportation. That did not receive the same wall-to-wall coverage, even though it affected more people and potentially subjected more individuals to Alien Enemies Act expulsions.

I also think that coverage that the Supreme Court garnered ignored how the court itself had created this mess because the court had blocked a lower court ruling that had prohibited the government from carrying out Alien Enemies Act expulsions on a nationwide basis. It was only because they had done so that the government was in a position to try to carry out more of them. I just think the court is very savvy about its image in the media, and it knows how the media picks up stories, portrays them and cycles through them.

Brian Lehrer: Could those two decisions you cite have really just been different? Like the extraordinary rendition, as you call it, meaning deportation to a third country without due process, really does violate the Constitution in the view of-- I think it was seven of the justices, which would include all three Trump appointees in that case. Whereas temporary protected status is something that was given by a past president, so it can be taken away by a current president.

Professor Litman: I'm not denying that these are distinct legal issues. But, for example, the reasons that Donald Trump gave for taking away temporary protected status just don't hold up. The State Department still has a travel advisory warning Americans not to travel to Venezuela because of the risk of wrongful detention, torture while in detention, and many other things. I just point out that I don't think it's just me who has this very real concern and skepticism that the justices are creating their own coverage and deciding what they want to do.

When Justice Jackson basically noted as much in a dissent from one of the Supreme Court's earlier rulings that had undone and blocked a lower court decision that had invalidated Donald Trump's efforts to freeze teacher training grants through the Department of Education. In a remarkable footnote, Justice Jackson basically broke the fourth wall and suggested that the justices did so in order to give the administration a win and generate that kind of coverage.

An early win in the early litigation fights, even if the administration was ultimately likely to lose later. I think the pattern of decisions, when they are releasing which ones, I do think there is a very political aspect to that.

Brian Lehrer: Here's a interesting pushback question coming in, in a text. It says, "If your view of someone's policy almost completely revolves around the words traffics and/or grievances and the like-- grievances is in your book title-- you might be oversimplifying because you seem to believe the man-- I guess referring to Trump-- is singularly interested in pushing down the poor and downtrodden. The majority of the country voted for him for a reason, however, and it isn't because they hate minorities. We are imagining deep philosophical intent when there isn't any. It is hurting the left in the public sphere because they know the things said about them aren't true." What would you say to that listener?

Professor Litman: What I would say is as follows. I think part of my project in the book is to paint a big picture. I acknowledge that there are some differences between the Republican appointees on the Supreme Court. What I wanted to focus on is the key similarities. Part of what I do is I parse their statements and opinions as well as their statements and oral arguments. I believe I can make a strong case that part of what is indeed driving them is this idea of conservative grievance.

Just to take one example, in Justice Alito's dissenting opinion to Obergefell v. Hodges, the marriage equality decision, he wrote that recognizing marriage equality, "Facilitates the marginalization of those with traditional views about marriage and even calls to mind the harsh treatment of gays and lesbians in the past."

He is equating the recognition of marriage equality with the persecution and criminalization of the LGBT community throughout the 1900s and 2000s. I think that that is just one example of this conservative grievance mindset and narrative that you can actually find in their reasoning, in their opinions. I would also acknowledge that, of course, different people had different reasons to vote for Donald Trump.

I think some people who were very wealthy voted for him because they thought it would be beneficial to them financially. It's also impossible to deny that he does make those appeals to grievances. He does attack different minorities in the country. That his administration is basically suggesting that they use DEI to basically mean any position of authority that a racial minority has, and that is some of what they are attacking. Different people might have different reasons, but this reason is very much present in Donald Trump's politics as well as the Supreme Court's.

Brian Lehrer: In Donald Trump's politics is one realm. When we come back from a break, I'm going to ask for your take on how he seems to be playing the grievance card in the realm of the law as well. We'll see how many of these four news stories involving the court system from the last day we can get to that I mentioned in the intro. Court activities on Trump's exertion of power against law firms. I think that may have been a very important ruling yesterday.

The media, New York State's mass transit funding, and his desire to deport migrants not to their countries of origin, but to third countries like South Sudan. He's now appealing to the Supreme Court on that one. We're going to run down some of those with you and then see if we have time to take some more calls and texts. As we continue with Leah Litman, University of Michigan law professor, author now of Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. Stay with us.

Brian Lehrer on WNYC as we continue with University of Michigan law professor Leah Litman, who some of you also know from her podcast, Strict Scrutiny, that she cohosts with Melissa Murray and Kate Shaw. Now she's the author of Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes.

I want to get to-- we'll see how many we can get to of the four court proceedings just from the last day, an indication of just how much of the battle over what to count as democracy is playing out in the judicial system right now. As many as we can get to. I want to start with a judge striking down Trump's executive order seeking to crush the law firm WilmerHale. As The New York Times reports it, WilmerHale, one of several firms the president says have wronged him or done work for his political opponents.

Judge Richard Leon of the Federal District Court for the District of Columbia ruled that the order was unconstitutional and "Must be struck down in its entirety." Interesting to me, The Times article contextualizes this right in its lead line by saying President Trump's campaign of retribution against elite law firms that have resisted his efforts to subjugate them is so far not going well. What happened in court yesterday on WilmerHale, as you see it?

Professor Litman: A judge concluded that the law firm was entitled to an injunction, which is a moral, permanent form of relief against the executive order. Previously, the judge had just awarded a temporary restraining order. Als,o this decision blocked the entire executive order, including the parts of it that threatened to rescind security clearances for lawyers at the law firm. It's a remarkable decision. I think there's more than two dozen exclamation marks in it, probably underscoring how strongly the judge felt about it.

Brian Lehrer: It's just the district court ruling, so it will presumably go up the chain. For you, as a lawyer and law professor, and I've been following this closely and we've done a few segments on this retribution campaign against law firms, there's a lot at stake in democracy terms here. How would you characterize it?

Professor Litman: There is so much at stake. Obviously, lawyers have played a key role in challenging the Trump administration and restraining some of the administration abuses. These executive orders are nothing short of an effort to kick to the curb one of the strongest and most effective tools against the Trump administration. They are trying to scare away people from challenging the administration in court or doing any kind of litigation that the administration would perceive as counter to them.

Brian Lehrer: Next case on congestion pricing. As Gothamist reports it, a Manhattan federal judge on Tuesday barred the U.S. Department of Transportation from retaliating against the MTA over the agency's decision to continue charging its congestion pricing tolls despite a federal directive to shut down the program.

Now, this might seem like a local story for the New York area, but I think there's also something larger implied here about when the president, sort of by executive order or via the transition transportation secretary, can get involved in a local decision on how to control roads or pollution or mass transit funding. Yes?

Professor Litman: Yes, absolutely. On top of that, I think it's another example of how this administration is basically trying to exercise the federal government's power as political retaliation in order to get local jurisdictions, states, and cities into line with their own views about the law. There are other cases involving New York similar to this, the administration's efforts to drop the prosecution against Eric Adams and then hang the threat of future prosecution over his head in order to secure his compliance with immigration enforcement.

I think that's another part of this larger picture of the administration trying to use all of the levers of federal power in order to force everyone, including states, cities, and localities, into line.

Brian Lehrer: Next one, there was the new lawsuit filed yesterday by NPR and three Colorado public radio stations. Obviously, we have a dog in this fight. Claiming Trump's executive order seeking to defund the network because he doesn't like their editorial choices is a violation of the freedom of the press guaranteed in the First Amendment to the Constitution. How do you see the arguments going in this?

Professor Litman: I hope they go very well. I think Donald Trump's statements have made clear that absolutely they are trying to defund NPR because they don't care for the content or views expressed by NPR. In the social media statements announcing the executive order, they announced that it was because NPR and other organizations were too woke, making clear again that they object to the content and views.

It is antithetical to the First Amendment for the government to be able to censor media outlets on the basis of their views or content. This is doing exactly that. I don't think it's just NPR that has a dog in this fight. I think we all do. Because again, this is challenging alternate sources of independent information, which is just essential to an informed electorate and civic society.

Brian Lehrer: Is the broader context important here of challenges to so many media organizations on whatever grounds they can find, media organizations that Trump claims are biased against him, because they will probably argue there is a right to freedom of the press in this country. There isn't a right to federal funding. That is a political decision. What's the larger context to view that argument in, according to you?

Professor Litman: There's no right to federal funding, but the government cannot make punitive decisions of withdrawing federal funding on the basis of viewpoint discrimination or content discrimination, which is pretty clear what's going on here. For example, the federal government could, if it wanted to in the next congressional appropriations bill, decide that they don't want to fund particular media. It would depend what reason they are doing so as to whether it's permissible.

Brian Lehrer: On deportations, we have this CNN headline from the last day. Trump asked Supreme Court to make it easier to deport migrants to South Sudan and other third-party countries. The CNN report says the appeal arrived at the Supreme Court days after the policy drew significant attention when the administration attempted to transfer detainees to war-torn South Sudan without a meaningful opportunity to contest their removal to a place where they might face torture. Your reaction.

Professor Litman: The administration's effort to challenge this ruling reflects such hubris because they carried out these flights, I think, pretty clearly in violation of the lower court order that had blocked them from rendering people to third countries in the absence of meaningful process. Also, the district judge bent over backwards to give the government an easy way out, saying that the government could afford these individuals due process even while they remained abroad, basically conducting hearings over Zoom. Still, that wasn't good enough for the administration, which in my view suggests nothing ever will be.

Brian Lehrer: Before you go, let me get to one question about your Atlantic magazine article, which argues, and I'm just looking for the text here, I've been and picking through those four cases to ask you those other questions. You're arguing basically that we are in a constitutional crisis, but the headline of the article says How to Hide a Constitutional Crisis. What to you is a constitutional crisis, and how is the Supreme Court, or it's really the Trump administration you accuse of trying to hide it?

Professor Litman: I think there are many reasons why we are in a constitutional crisis now. That particular piece is focused on what some people see as the red line or Rubicon of a constitutional crisis, which is when the executive branch disobeys a court order. The argument in that piece is that they are claiming they are complying with the court order and giving a bunch of legalese and legalism to suggest they are, when in reality, they are not.

Their legal arguments are baseless, and they are papering over what is real defiance of judicial oversight. It argues that we are in a constitutional crisis, but they are trying to obscure that reality by continuing to insist that they are in fact complying with court orders when in reality they are not.

Brian Lehrer: I guess the question about that would be, is that not what lawyers do all the time, use any lawyerly language they can find in a decision or an argument or a law to say, see, we're allowed to do this?

Professor Litman: Yes. The piece is based on a longer draft law review article that is 77 some pages. In that piece, we go into how the arguments that the administration is making aren't just losing arguments, they are specious arguments. They are so baseless that it's not the average sort of two lawyers coming up with the best arguments they can on both sides. They're just borderline ridiculous arguments.

Such as, for example, that the district court lacks any power over individuals in international waters, even though those individuals were on a plane being flown by the United States government with only United States government officials on it. There are just some arguments that they are making that are so outside the realm of the plausible that we think it's different than what we've seen before.

Brian Lehrer: Bravely squashing a 77-page law review article into one radio interview. Answer? Leah Litman, University of Michigan law professor, cohost of the legal affairs podcast Strict Scrutiny, and now the author of Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. Thanks so much for joining us.

Professor Litman: Thanks for having me.

Brian Lehrer: Brian Lehrer on WNYC. More in a minute.

 

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