Leah Litman on Venezuela, ICE, and the Supreme Court’s “Lawless” Moment
JUDJ-Prepared Summary from January 7, 2026 | Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. The views and opinions expressed in this blog are those of the speaker.
In a recent America at a Crossroads discussion, University of Michigan law professor Leah Litman—co-host of the Strict Scrutiny podcast and author of Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes—joined the program to unpack a fast-moving set of legal and political crises, from U.S. actions in Venezuela to immigration enforcement at home. The conversation traced a throughline Litman sees across today’s headlines: when power is exercised first, legal justification is often constructed later—and the institutions designed to check that power may be enabling it instead.
Venezuela and the Limits of Force
Asked to assess the Trump administration’s legal claims around removing Nicolás Maduro, Litman said the international law question is “a clear-cut case of absolute no.” Under the UN Charter framework, she argued, a state cannot use force as a tool of policy absent a Security Council resolution or a triggering attack—conditions she said were not present here. The harder part, she noted, is enforcement: international law often depends on how other countries respond, and responses can be muted when retaliation is feared.
On the domestic side, Litman acknowledged the analysis can look “more murky,” but still pointed to core constitutional principles. Congress, she emphasized, holds the power to declare war; the president’s limited authority to repel an imminent attack does not match what occurred. She also argued that the administration’s framing of the operation as “law enforcement” is contradicted by subsequent statements and actions implying control over Venezuela—undercutting the idea that this was a narrow mission within ordinary executive authority.
What Courts Will (and Won’t) Examine
A key reality in U.S. law, Litman explained, is that courts generally do not scrutinize how a defendant ended up before them. If a person is physically within the court’s jurisdiction, the case can proceed—meaning the legality of the rendition or capture may not be the focus.
Instead, Litman highlighted, the pivotal question becomes immunity. Maduro, she noted, could raise a head-of-state defense. That sets up a predictable clash: the executive branch may claim it does not recognize Maduro as the legitimate head of state, and courts have historically deferred to the executive on recognition. Litman contrasted this with Manuel Noriega, arguing Maduro’s claim is stronger because he has exercised head-of-state powers over an extended period.
The Alien Enemies Act and a Collapsing Narrative
The interview also turned to the administration’s use of the Alien Enemies Act to deport Venezuelans accused of gang ties. Litman suggested the administration’s shifting story—first depicting the Venezuela action as law enforcement, then describing a broader coercive agenda—undermines the rationale for invoking wartime-style authorities. With appellate arguments looming, she predicted those contradictions would be difficult to explain, particularly if the government’s original narrative appears to have been “an invented” one.
The Minnesota Shooting and Accountability for Federal Officers
Litman addressed a fatal Minnesota shooting involving an ICE agent and a U.S. citizen, arguing that federal officers can be prosecuted under state criminal law when actions fall outside lawful duties. Claims of self-defense, she said, may be raised like any other defendant would, but she emphasized that video evidence can be pivotal in testing those claims.
She also drew an important distinction between criminal prosecution and civil liability. Qualified immunity applies in civil suits for damages, not criminal cases. Even then, Litman noted, plaintiffs can face an additional barrier: limits on so-called Bivens claims may prevent lawsuits against federal officers in certain circumstances.
The Shadow Docket as an Enabler
Finally, Litman warned that the Supreme Court’s “shadow docket”—emergency orders often issued quickly and with limited explanation—has become a powerful mechanism for enabling major policy shifts without full briefing or accountability. Emergency relief has legitimate uses, she said, but the practice can also allow the Court to grant sweeping wins while minimizing visibility and avoiding the reputational cost of detailed opinions.
The conversation ended with a call to civic focus: sustained public attention, criticism, and political engagement around the courts, Litman argued, can still shape outcomes—and may be essential in a moment she described as increasingly “lawless.”
About America at a Crossroads
Since April 2020, America at a Crossroads has produced weekly virtual programs on topics related to the preservation of our democracy, voting rights, freedom of the press, and a wide array of civil rights, including abortion rights, free speech, and free press. America at a Crossroads is a project of Jews United for Democracy & Justice.