What Does Peak Fascism Look Like?

Strict Scrutiny

This episode of Strict Scrutiny examines the rise of authoritarian tendencies in U.S. politics, focusing on government actions that resemble fascist tactics—such as deploying election monitors

Key takeaways

• The deployment of election monitors under the current administration is not rooted in protecting voting rights but in intimidating marginalized communities, echoing fascist tactics.
• Supreme Court rulings have enabled dangerous policies like third-country removals without requiring due process or individualized risk assessments.

Main topics

• Fascist tendencies in modern U.S. governance
• Supreme Court decisions enabling authoritarian policies

Notable quotes

I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

What's so weird about sending ICE to polling places? Well, first of all, Todd, the law. That you can't do that.

Conclusion

While authoritarian trends and judicial complicity threaten democratic foundations, resilient

Transcript preview

Speaker 7 (0:00) Strict scrutiny is brought to you by Americans United for Separation of Church and State. 250 years into the American experiment, it's time for all of us to decide. What kind of a country do we want to be? The Founding Fathers got a lot of things wrong, but one thing they got right was knowing that church and state need to be kept separate. Christian nationalists are trying to destroy that history and take this country down a scary path. They're misusing government power to impose their beliefs, rewrite our history, and decide who belongs in America. Americans United refused to let that happen. Every single day, Americans United is fighting back and holding the line against Christian nationalism with everything they've got. A.U. has sued the Trump administration seven times in the last year alone and 12 times since his second administration began. A.U. has challenged government officials who use taxpayer resources to promote their religious beliefs. They've exposed abuses of power, defended public schools, and held the government accountable when it violates the Constitution. But filing lawsuits, changing policy, and community advocacy don't happen on their own. They happen because people like you decide to be part of AU's fight. If you're looking for an empowered community to join, take a look at what's going on with AU. Visit au.org slash crooked to learn more and join the fight today. Speaker 1 (1:19) It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Speaker 7 (1:58) Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm your lone regular host for today, Leah Littman, and I'm very happy to be joined by guest host Somal Trivedi. Somal is the Advocacy Director and Senior Counsel at Court Accountability, whose work we'll be talking about some on this episode. He's also worked previously at Democracy Forward, ACLU, Maryland Legal Aid, DOJ, Speaker 2 (2:20) and WilmerHale. Welcome to the show, Somal. Hey, Speaker 5 (2:22) thanks for having me, Leah. Happy near end of summer. Speaker 2 (2:25) Near end of summer, which I cannot mentally get around to, given that school starts today, the day this episode is released. What a world. Okay, so. Wow. I already started out kind of somewhat bleak at the top of this episode. We haven't even gotten to legal news yet. No, I'm excited for the school year. I did, after all, choose to stay in school forever. So here's what we have in store for you today. Somal and I are going to discuss some legal news, maybe even play a little Speaker 7 (2:55) game or two. Then we'll share our favorite things. After our conversation, you'll hear a great conversation that Melissa had with Jesse Wegman about Jesse's great new book, The Lost Founder, James Wilson, and the forgotten fight for a people's constitution. So be sure to stay tuned for that. And also, this isn't the only episode of Strict Scrutiny this week. This Thursday, you will have your second episode that's part of our bonus series, Know Your Rights. Two weeks ago, I had a conversation with Jocelyn Simonson about knowing your rights regarding cop watching to observe and record law enforcement. This week, you'll hear Melissa and me talking with Daniel. about your rights not to respond to law enforcement officers. Speaker 2 (3:30) So be sure to listen in for that. But first, the news. I'm thinking about shortening this transition or name of the segment just to the EWs, as in yucky, like emphasizing the EW in news going forward. Anyways, this is the mindset I am in. So apologies for all of the puns that might fall your way. But someone and I are going to talk about several developments that at least mentally I've grouped into a few categories. Straight up fascism. Also efforts to fight back against said fascism. So a little uplifting. Then corruption that is adjacent to and probably enables said fascism. And then rising Christian nationalism as a cherry on top. As always, it's going to be a great time. Speaker 5 (4:11) Yeah, I'm glad that some of that will be news you can use. Speaker 2 (4:16) I'm glad you're into the Remington puns as well. So with that, maybe let's just start with the straight up fascism and the freaks that are into it. And when I say fascist freaks, you say what? Harmeet. As in Harmeet, you are hoes, Dylan, the assistant attorney general for civil rights, or as Melissa would say, civil wrongs. Anyways, assistant attorney general, you are hoes, announced that DOJ's civil rights division will be Speaker 7 (4:39) sending around a thousand election monitors around the country. as you can hear here. In Speaker 1 (4:46) and out since the 1957, the United States Department of Justice Civil Rights Division has sent monitors to election hotspots, polling places to increase voter confidence, to troubleshoot problems. And we are doing that now. We just did it in the primary. We're going to do it to the tune of approximately a thousand election monitors in the November election. Speaker 2 (5:09) So what are your thoughts? They're just doing what like the Lyndon Johnson and other administrations did, sending election monitors to the South, right? Speaker 5 (5:17) Yeah, exactly. You know, later on in that clip. She goes on to say all the people she's going to target with these new election monitors. And turns out none of them are, you know, black people in the South or people in rural areas who have been disenfranchised. Right. It is the same laundry list of scapegoats, Speaker 6 (5:35) immigrants on down that they are going to try to intimidate. And in case you didn't believe her, her boss, Todd Blanche, keeps saying out loud in front of every camera, what's so weird about sending ICE to polling places? Well, first of all, Todd, the law. that you can't do that. You're the one charged Speaker 5 (5:52) with enforcing the law in this country. You probably ought to Speaker 6 (5:55) know that. And of course, their big boss, the president, has said at every possible turn, the Republicans should simply try to rig the elections for themselves. He's messing with mail balloting. He's doing mid-cycle redistricting. Like, nobody believes that this is the kind of civil rights era monitoring that previous administrations have done. Get out of here. Speaker 2 (6:15) Yeah. And, you know, as she notes, they did send election monitors during the midterms. And so on some level, this isn't like escalation thousand time to panic. But it is something that people should be aware of going into November. It is designed to depress turnout. It shouldn't be allowed to depress turnout. And so maybe this is a great moment for the kind of collective stubbornness that. Kate, Ami, and Julia talked about in their discussion on On Courage, where we all kind of share this information as well as what to do about it. Speaker 6 (6:45) Yeah, that's right. We can't let them scare us out of voting. Voting is still safe and effective in this country. And if you're nervous, let's make a plan together. You know, vote early. Vote by mail and vote early. If you can go in a group, go in a group. If you're a vet. or a priest or a lawyer or somebody else who the administration doesn't want to see roughed up on TV, take a group of people. There's actually an amazing effort called Project Halo going on that's recruiting community leaders, faith leaders, vets, et cetera, to be chaperones to the polls for other people who may not be in the same position. And so the pro-democracy movement has at every turn, like stepped up to the plate. to combat these fascist, straight up fascist attempts by the government. And this will be no different. So if you are seeing this in the news and you're a little bit scared, believe me, there are resources out there for you. Speaker 2 (7:40) Yeah. And I just add other. Opportunities you can volunteer for are election observers or poll monitors or, you know, challengers, because if you stay and observe, right, you can identify if and when there's any federal law enforcement overreach or intimidation. Speaker 6 (7:57) Exactly. Speaker 2 (7:58) Yeah. So in what I think is peak fascism and peak fascism that was enabled by this Supreme Court in one of the absolute worst decisions, not from this most recent term, but from the last, we learn more about the so-called third country removals that the administration is still carrying out. Third country removals, you might recall, are where the administration expels people to countries they may have no connection to. And of course, the administration picks countries with horrific prisons and where people face risks of torture, violence, being trafficked into slavery or death. Now, a lower court had blocked the removals only to require the government to allow individuals to challenge whether the government could in fact send them to one of these places where they faced these grave risks before the government sent them there. But the U.S. Supreme Court said, nope. administration can just go ahead and ship people off with no due process. Now, The New York Times managed through incredible reporting to actually speak to some of the people who were shipped off to these third countries here specifically to Eswatani, where they are now incarcerated with little to no sign of how or whether they might ever be released. People need to read this story in its entirety, but I just want to give people a taste and highlight some of the things that have stuck with me. So the story primarily features a man who arrived in the United States when he was 12 as part of the Mariel boat lift from Cuba. And the story begins, quote, as he stepped out of the American military cargo plane, Roberto Mascara still couldn't tell where he was or what he had been taken there. This man is 59 years old. He was arrested when he went to a regular immigration check-in to renew a work permit. He was forced inside a metal cage. While in prison in Eswatani, he developed glaucoma, losing half his vision in one eye and 80 % in the other. He struggled to receive treatment. When the New York Times first spoke to him on this WhatsApp video, he said, quote, Can I ask you a question? Do you think I'll ever get out of here? So I just ratted off like a ton of details. Like what stuck? to you from that story? Speaker 5 (9:56) Yeah, so a couple things. One, you know, sometimes we can get lost in the cruelty of this administration. But this, as you said, is one of the most Speaker 6 (10:07) disgusting things that they're doing on a daily basis. And we just cannot, cannot, cannot forget the moral and legal cruelty that they're visiting on people. Second, I want to re-up your point about the Supreme Court. Their decision on the shadow docket in DVD is what allowed this to happen. For my money, probably the most disgusting use of the shadow docket that we've seen so far because people like Roberto Mascaro were given literally no ability to challenge their removal before they were taken off to places like El Salvador and Seacott or Eswatini or where have you. And this blood is on the Supreme Court's hands. And Speaker 5 (10:47) third, I want to focus on a bit of a wonky detail, but one that keeps coming up and I want folks to know about it. Mosquera is from Florida, right? He was part of the Cuban boatlift. He lived in Miami, but he was taken to Texas first. Speaker 6 (10:59) Just Speaker 5 (10:59) like Kilmar Abrego-Garcia was taken from Maryland to Texas. And Badar Khansuri, Speaker 6 (11:05) the Georgetown professor, was taken to Texas. And so many of the Alien Enemies Act detainees, right, were taken from the Northeast to Texas. Texas before they were flown out of the country. Now, why is that? Like, why is it that the DOJ wants to make damn sure that the last place that these people are are in Texas? Could it be because of the favorable judges there? Could it be because of the bloodthirsty Fifth Circuit? And that's where they will have their day in court if they ever have it. I think this is a piece of lawfare that we're not paying enough attention to and something that needs to absolutely be fixed. Some of these defendants have been able to be moved back to their home jurisdiction. And that hasn't worked. But in some cases it will. And it should be absolutely illegal. Speaker 2 (11:49) Yeah, it's the perfect encapsulation of how the stakes of these technical issues like venue or jurisdiction, right, or anything. But and also when we talk about the stakes of, for example, blue slips and being able to nominate judges. Speaker 5 (12:04) Yes. Speaker 2 (12:05) What has happened to the Fifth Circuit and Texas is so much a part of that story. And it has enabled some of these absolutely horrific. Speaker 5 (12:14) 100 percent. Speaker 2 (12:15) Yeah. Abuses. Just one other detail from the story, you know, for a Supreme Court that supposedly cares about religious freedom and religious exercise. You know, another detainee that the Times spoke to is Muslim. And he describes how. guards blasted Christian music through speakers and ordered the men to stand outside and pray and that this man is terrified he will die in a Christian country and will not receive a proper burial. And as I was saying, you have to read this piece to understand what's being done in our names and the stakes of all of these decisions when you hear people both sides are trying to equate the parties. Like, look. Democratic Party. I could list a trillion things they could be doing better and they're not doing this. And, you know, the Times reported that Liberia agreed to take more than a thousand additional people who were going to be expelled. So these third country removals are still happening and may even accelerate. Speaker 5 (13:10) Oh, yeah. Oh, yeah. They have carte blanche right now. It's horrific. Speaker 2 (13:13) Yeah, carte blanche, Todd Blanche, as we said. So in more fascism, no transition here. I'm not Melissa, but wanted to talk a little bit about the efforts to fight back against fascism. There were some recently filed lawsuits that we wanted to discuss, and one is Disney and Disney's subsidiary ABC lawsuit against the Federal Communications Commission. That lawsuit argues that the FCC's review of Disney's broadcast licenses, essentially the licenses for Disney to distribute its material across a ton of networks, that The FCC's review of those licenses is an unconstitutional retaliation against the company that violates the First Amendment because it's being done in response to content and views that ABC had broadcast. Welcome to the resistance, Minnie Mouse. I always knew she had it in her. So the lawsuit was filed by former Republican Solicitor General Paul Clement. Somal, I'll ask you for your reaction first, since I've been talking for a while, but there's a lot about this lawsuit that I feel like is worth flagging. Speaker 5 (14:11) Yeah, I mean, I definitely want a constitutional law professor's take on the First Amendment issues here. But I will Speaker 6 (14:17) say from the point of view of the resistance and many being welcomed in, I know a lot of people will want to say. screw these guys. They capitulated early on. They paid blood money, right? They almost canceled Jimmy Kimmel until a bunch of us moms and dads canceled our Disney Plus subscriptions and then they magically brought Jimmy Kimmel back. I get that. I get the, like, the instinct. But for me, it's never too late to do the right thing. Yes. The tent is large. If folks, especially the most powerful folks in the world, like the owners of Disney and ABC, want to finally come around and realize that it's bad for business and bad for humanity for you to continually capitulate. And if you finally realized that no amount of lunch money is going to satisfy these fascists, great. Like the water in Splash Mountain is warm. Come on in. And I think the other the other point I want to make is like we've been having this like national re freak out about woke one. Right. Like relitigating the whole thing. We're putting the hair shirt back on and like flogging ourselves. But like mute, mute. Right. First of all, Woke One was largely about holding like sexual abusers and racialized police violence accountable. And I think we might have gotten that part right because we have a sexual abuser unleashing police violence on the country. So like it wasn't all bad. And second, I know this is like an easy take, but where are the cancel culture warriors? Right. You were told that the major overreach of woke one was that you couldn't say anything anymore and the government or the mob would shut you down. And now we have the FCC actually shutting people down. Like, where are you at, Barry Weiss? Where are you at, Matt Taibbi? Where are all of you motherfuckers? Speaker 2 (15:59) Well, and also, like, look around the world. You think our problem is that woke one went too far? The Supreme Court just said that the president's vile racist smears of Haitian nationals were not overtly racial. So, yes, tell me more about how woke one went too far. But since you asked for the con law professor's take on this lawsuit, I would say that the major lesson here is a life lesson. And that is always listen to fucking Stringer Bell when he says do not take notes on a motherfucking conspiracy. Because this lawsuit just uses the president's words against him to establish the retaliatory motive. And similarly with the words of FCC Commissioner Brendan Carr. So the third paragraph in the complaint is a truth post from Trump that says, if network newscasts and their late night shows are almost 100 percent negative to President Donald J. Trump, MAGA and the Republican Party, shouldn't their very valuable broadcast licenses be terminated? I say yes in all caps. This is, as we say in the biz, OMG, he admitted, like just saying, should I do this unconstitutional thing for the very reason that would make it unconstitutional? You know, and then you add to that the Brendan Carr quotes in like two paragraphs down where he's talking about Jimmy Kimmel and says, we can do this the easy way or the hard way, just making it clear they're operating a mob style government threatening broadcast licenses when they don't like what these networks say. It's just utter. Yeah, Speaker 6 (17:26) you wouldn't even bother giving this as a final in your class. Like the kids wouldn't even need to use AI to answer it. It's just too easy. Speaker 2 (17:34) Yeah, I know. I know. Now, if you are interested in hearing more of life's legal lessons, like always listen to Stringer Bell, may I remind you that Strict Scrutiny is now offering CLE. Our first course is available through Lawline. Not all states qualify at this time, so you should check the eligibility before you purchase. But we are approved in California, New York. Texas, North Carolina, Georgia, Washington, Oregon, Pennsylvania, Illinois, and Virginia. So if you'd like to see the state your bar license is in added to the approved list, you can send an email to strictscrutiny at crooked.com, and we are working on it. Go to crooked.com slash strict underscore CLE to learn more and buy the course. Once your purchase is complete, you'll receive a confirmation email with the link to access your course. Okay, so that's lawsuit number one. Another recently filed lawsuit concerns something we've talked about on this show before, and that's Minnesota's efforts to try to ensure some accountability for the lawlessness that resulted in the shootings and killings of Minnesotans during Operation Metro Surge earlier this year. So we had Mary Moriarty, who's county attorney for Hennepin County on the show, to talk about Minnesota's efforts to protect their citizens in the fight against federal overreach. And yes, that is a hat tip to the name of their great organization, FAFO, that she co-founded. But Minnesota has charged a former ICE agent with unlawfully firing a gun into an occupied home, hitting Sulio Cesar Sosa Saliz, who he then, the officer then falsely accused of attacking a federal officer with a broom handle. Now, the former ICE agent, Christian. Speaker 7 (19:07) Castro is currently in state custody in Texas, and Texas being Texas, is refusing to sign a warrant Speaker 2 (19:12) extraditing him to Minnesota, sending him to Minnesota until Minnesota, quote, steps up and repays the United States of America and Americans for all the fraud that they've committed in their state through federal programs. Womp, womp. This is just bullshit and noise. Governors don't have authority to refuse to honor a valid interstate extradition request, but It seems like the game here is to run out the clock because Texas's law, which implements a federal law on extradition, authorizes a court to place in custody someone who's been arrested on an out-of-state charge and extend Speaker 7 (19:47) their time in custody, but only up to 90 days. And at that point, poof, the Speaker 2 (19:52) detention authorization just goes away. So Castor was arrested May 29th, which means the 90 days the detention commitment could expire on Wednesday, the 27th. Now, Minnesota has sued Abbott to force him to comply with the extradition rules. They've also sought a temporary restraining order barring Castro's release, likely because they may be concerned that Castro, once released, might flee to Mexico, where there is no state extradition law. And also, it seems like he might have a girlfriend in Mexico, according to the complaint. But I'm at least, like, really concerned about gamesmanship here, where, you know, it's in the Texas district courts, which... as we were saying in the Fifth Circuit, like, are those courts just going to sit on it and allow this to kind of disappear under cover of night? Like, I guess, what are you watching for or hoping or thinking will happen? Speaker 5 (20:41) Yeah. So first, I want to point out just how obviously illegal it is for. Abbott to refuse to send him. Like, it's not just statutory law. It's in the Constitution. We have an extradition clause of the Constitution. Fun fact, it happens to be next to the one about fugitive Speaker 6 (20:57) slaves. So, like, it's a real dichotomy of America situation. But in any case, we have an extradition clause, a mandatory extradition clause in the Constitution. We have federal law. We have state law. We have, you know, administrative law, all of it being violated here. Keith Ellison is pointing that out very clearly in his motion. And you're right. The only thing that the court could do here, the courts in Texas could do, is Speaker 5 (21:19) let the clock run out. And I worry that that's exactly what's going to happen. And, Speaker 6 (21:24) you know, two other points. One, do we want to live this way? Like, do we want to have states using the criminal justice system to make political points? Like, you know, hot murderer Luigi Mangione was just. extradited from Pennsylvania Speaker 5 (21:39) to New York. Like, what if all of a sudden the governor of Pennsylvania decided we're not going to do that anymore Speaker 6 (21:45) because I want to make a point about health care costs or whatever? We would have total lawlessness and anarchy across the country, which obviously Greg Abbott doesn't care about. But the rest of you definitely should, including people in Texas. If this guy gets out, he's on the land in Texas for a while and he's always going to be shooting Speaker 2 (22:00) into your homes. Speaker 6 (22:01) Exactly. Exactly. So all these people who. cry on about law and order and about public safety and how they're the party of it. Just look at this example of how they're harboring a criminal or an alleged criminal for the purpose of making a political point. And second, I just want to end on another hopeful note here, much like Harmeet Dhillon's going to send her election monitors and we're going to step up and keep the elections safe. Local and state officials. who are facing ICE violence by the federal government, have options to fight back. And Mary Moriarty and Keith Ellison are doing it. And of course, they're going to face an uphill battle with shenanigans like this and in the law itself. But not doing anything is not an option. And I really hope that local and state officials all over the country, red or blue states, doesn't matter, stand up for their own constituents and start filing these cases. ICE is committing crimes in every state in Speaker 1 (22:58) the Speaker 6 (22:58) union. This could happen. anywhere. And so I really hope that they see that it's not impossible. The law does support them and they go out and do it. Speaker 2 (23:06) Yeah. And it seems like, at least to me, what Texas is doing here is something that in my mind I am thinking of as aiding and abetting federalism, because, you know, we all see how obviously federalism interests and who cares about federalism change a little bit when we're talking about partisan violence. But here we have a. Pretty simple case of a state attempting to enforce a state law when federal law enforcement officers are harming their constituents. So apparently another state steps in to try to help the federal government and federal officers maintain no accountability and immunity from, you know, accountability to a state. It's just all kinds of fucked up federalism. Yeah, that's Speaker 6 (23:48) right. And to like put a fine point on it. Texas has no problem, say, trying to invalidate the votes of other states like they did in 2020. They have no problem like investigating women who get abortions in other states. Right. In those instances, the other states can go kick rocks. But now that Minnesota is trying to make its interests known in Texas, Speaker 5 (24:07) they won't let them. That's very convenient for Greg Abbott. Speaker 2 (24:10) Yeah. And Greg Abbott has been processing other extradition requests from Minnesota. Right. Like this is, as you were saying, just like pure politics and just absurdity at that. So since we're talking about lawsuits involving my home states, I did want to talk about another one that is near to me because it concerns my current home state, Michigan. So I have ranted on this podcast before about how this administration has nominated to a lifetime federal judgeship a U.S. attorney who allegedly, among other things, was involved in the firing of career federal prosecutors who had the audacity to enforce the law, specifically a law the administration doesn't like, the FACE Act, the Free Access to Clinic Entrances Act, which makes it a federal crime to obstruct people entering health care clinics, including abortion providers. This lawsuit was filed by Sunita Dadamani. It alleges she was fired for her perceived political affiliation beliefs in violation of the First Amendment and the Civil Service Reform Act, among other laws, because she had worked on this prosecution. I want to remind people that both of the ostensibly Democratic senators in Michigan returned a blue slip for the guy who allegedly was involved in. facilitating the violation of these various laws by being involved in the firing of this career prosecutor and perhaps others as well. The firing notice itself was issued by Attorney General Todd Blanch under Article 2 because, of course, it was. But, you know, the prosecutor had worked on prosecutions against those who plotted to kidnap Michigan Governor Gretchen Whitmer. And the complaint lays out, you know, the Trump administration's anti-Face Act campaign and actions. But it's a super compelling document, and I hope this keeps the retaliation campaign in the news and maybe even prompts you rethinking of returning a blue slip against a guy who may have been involved in all of this. Speaker 5 (25:54) Yeah, it's another heartbreaking story about public servants being fired for their jobs. We went through this with the January 6th prosecutors. We went through it with the FBI agents, and this is yet another one. And so I totally agree we should keep it in the news. Second. The motherfucking blue slips. I mean... Like, you know, we talk a Speaker 6 (26:12) lot about court reform in our spaces and the low hanging fruit, right? Term limits, ethics, etc. Speaker 5 (26:17) This is the Speaker 6 (26:17) lowest of the low hanging fruit. But we can do it today. We can just stop aiding and abetting fascism by ending this practice today. There's another horrific story out of Illinois about a judge who got a blue slip from Senator Dick Durbin and then went and provided the only win that the administration has had in these cases trying to get rid of in-state tuition for undocumented kids. It's a long story. But they've been basically achieving their policy goals through collusive settlements. Right. With like friendly folks on both sides that are illegal in their own right. But in this case, this judge handed them an out and out win on the merits. Speaker 5 (26:55) And it was a blue slipped judge from from our side of the aisle. Speaker 6 (27:00) And I just don't understand how. Like when we're going to get the message that these these judges are just henchmen for the apocalypse and we need to stop like paving the way for them. Speaker 2 (27:11) Right. And I understand