Strict Scrutiny Can America Pull Back From the Brink of Autocracy?
33 snips
Jan 5, 2026 
Rebecca Ingber, a law professor and former State Department counselor, dives into the illegality of the Trump administration's regime change operation in Venezuela. She highlights constitutional issues and the limits of international law. Kim Lane Scheppele, a scholar on autocratic legalism, explains how courts can be manipulated to consolidate power and discusses the dangers of irregular judicial appointments. Josh Orton from Demand Justice raises concerns about Trump 2.0 judicial nominees, emphasizing their alarming stances on crucial issues and the politicization of the judiciary.
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How Courts Enable Autocratic Capture
- Autocratic capture typically replaces court personnel and appointment rules to entrench power while preserving a veneer of independence.
- Kim Lane Scheppele warns captured courts rule for executive entrenchment on key issues while occasionally losing on less crucial rights cases to appear impartial.
Shadow Docket As Substantive Tool
- Shadow-docket procedures let courts make de facto substantive changes without full merits reasoning or remedies.
- Scheppele says that delays and terse orders can destroy remedies so merits rulings may matter little after damage is done.
Brazil’s Public, Buffered Accountability
- Brazil prosecuted Bolsonaro using politically buffered institutions that uncovered a violent plot and prosecuted publicly.
- Scheppele notes the success but warns judges remain vulnerable to impeachment if political tides change.
