Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: 2016 Term Preview ("The Thin Gruel Edition")

Date: October 1, 2016
Host: Dahlia Lithwick
Guests: Judge Shira Scheindlin, Tom Goldstein

Episode Overview

In this "Thin Gruel Edition," Dahlia Lithwick previews the 2016 Supreme Court term, characterized by a notably uncontroversial docket—largely due to the Court operating with only eight justices following Justice Scalia’s death. The episode features a deep dive into the recent debate over "stop and frisk" brought up in the presidential debates, with insight from former federal Judge Shira Scheindlin, who ruled on the New York stop and frisk case. Then, legendary Supreme Court litigator Tom Goldstein joins to survey the roster of Supreme Court cases for the term, the reasons for the “boring” docket, and blow-by-blow commentary on what's at stake in the few headline-worthy cases.

Segment 1: Revisiting "Stop and Frisk" — Judge Shira Scheindlin Interview

Timestamps: [01:29] – [15:44]

Key Discussion Points & Insights

• Intro & Debate Context ([01:29]–[02:31]):
  The discussion begins by revisiting comments from the first 2016 presidential debate, in which Donald Trump advocated for the return of stop and frisk policies. Trump criticized the legal ruling against NYC’s program, referencing Judge Scheindlin’s decision.

• Scheindlin’s Ruling Explained ([02:33]–[06:22]):

  • Stop and frisk is not inherently unconstitutional—its constitutionality hinges on adherence to Fourth Amendment principles set by Terry v. Ohio.
  • Fault in NYC's practice:
    • Overwhelming majority of stops were conducted without reasonable suspicion.
    • Racial disparities: Young Black and Hispanic men (14–24) were disproportionately targeted.
    • Low efficacy: "In 90% of the stops, there was no further law enforcement action.” ([03:49], Scheindlin)
    • Very low contraband/gun recovery rates despite high volume of stops.
    • Direct evidence from tapes and testimony corroborated intentional racial targeting.

• Fact-Checking Trump’s Debate Claims ([06:22]–[10:32]):

  • Trump’s assertion that stop and frisk "took guns away from all the bad people" is refuted with statistics:
    • “When it was 100,000 stops... eight or 900 guns seized. And when it was 600,000 stops, there were still eight or 900 guns seized. So you have a sixfold increase in stops, but no increase in gun seizures.” ([07:47], Scheindlin)
  • No evidence links increased stop and frisk to crime reduction:
    • The drop in crime preceded the dramatic rise in stop and frisk.
    • After stop and frisk rates plummeted, crime rates did not rise.

• Community-Police Relations & Policy Alternatives ([10:32]–[12:46]):

  • Trump’s rhetoric drives a wedge between police and minority communities.
  • Judge Scheindlin agrees gun control is a more effective crime-reducer (“If we would have some level of gun control... that would be the very first step in reducing crime.” ([11:15], Scheindlin))
  • Harsh enforcement policies exacerbate alienation and anger in affected communities.

• Attacks on Judiciary & Professionalism ([12:46]–[15:26]):

  • Lithwick highlights attacks on judges' motives (referencing Trump’s remarks linking Scheindlin to anti-police bias).
  • Scheindlin explains: the “anti-police” narrative originated from hearsay, not direct impropriety, and was amplified by political actors (namely Giuliani).
  • She distinguishes this episode from broader Trump-style attacks on judges, suggesting Trump was repeating lines fed by Giuliani.

Notable Quotes

• Judge Shira Scheindlin:
  • “Stop and frisk is constitutional if it is done pursuant to the Supreme Court’s interpretation... If there is reasonable suspicion... then it is okay to stop someone... What I did rule is as practiced in New York... it was unconstitutional.” ([02:55])
  • “All it did was to alienate the community and the police.” ([10:32])
  • “This notion of the seizure of guns is simply not true. The more the stops went up, there were no more seizures of guns.” ([07:47])
• Dahlia Lithwick:
  • “It’s a very sort of strange and pernicious view of law and order that really, I think, pits minorities against the police.” ([10:32])

Segment 2: 2016 Supreme Court Term Preview with Tom Goldstein

Timestamps: [15:47] – [39:50]

Key Discussion Points & Insights

A. Why Is the Docket So Thin?

• Death of Justice Scalia and Eight-Justice Dynamics ([17:02]–[17:48]):
  • With four liberal and four conservative justices, both sides “put themselves on lockdown” to avoid controversial cases that could result in 4–4 splits.
  • The Court has granted fewer and less contentious cases: “Let’s go to Dullesville and pick up some cases that are really not that controversial.” ([17:02], Goldstein)

B. Noteworthy Cases on the 2016 Docket

• Trinity Lutheran Church v. Comer ([18:25]–[20:57])

  • Subject: Whether a state can exclude a church from a government grant for playground resurfacing due to a state constitutional ban on aiding religion.
  • Goldstein: “What do you do under our First Amendment... when you have that kind of tension where the state wants to not get too close, but... is it actually putting religion at a disadvantage?” ([18:25])
  • The Church-State funding debate’s practical implications and historical backdrop.

• Intellectual Property Hot Topics ([20:57]–[24:36])

  • Patent Cases: The Court is more comfortable with patent/IP cases as these often generate consensus and little ideological division.
    • Samsung v. Apple: Damages for design patent infringement—“Does Apple get Samsung’s profits that stem from the front face of the phone, or... all of the profits?” ([22:12], Goldstein)
    • Cheerleader Uniforms case: The scope of design protection for clothing—“What the rules are going to be for protecting the designs of cheerleader uniforms... a lot of clothing is based on principles of design.” ([23:53], Goldstein)

• Criminal Justice: Racial Bias and Jury Deliberations ([24:36]–[25:57])

  • Case questioning if exceptions should be made to the rule against examining jury deliberations in light of credible evidence of racial bias.
  • “Can you completely immunize a criminal conviction from any inquiry... into whether there was something so significant as racism in the jury’s deliberations?” ([24:58], Goldstein)
  • Buck v. Davis: Racist testimony introduced by a defense attorney—can procedural obstacles bar review of such cases? ([26:07], Goldstein)

• Racial Gerrymandering ([27:33]–[29:03]):

  • The Court is tackling redistricting cases from North Carolina and Virginia—when are race-based district lines unconstitutional if they also correlate with party interests?
  • “Where does the Constitution forbid [mixing politics and race]? ... It’s often very hard to tell the difference between the two.” ([27:33], Goldstein)

C. Hot-Button Issues on the Horizon

• Voting Rights & Voter ID Laws ([29:03]–[31:34])

  • The Court is reluctant to intervene last-minute in voting laws pre-election, to avoid appearing partisan.
  • “Their compromise, when they're so closely divided, is to say, let's not do stuff in a rush.” ([29:42], Goldstein)

• Transgender Rights and Bathroom Access ([31:47]–[34:40])

  • Cases are percolating in the lower courts; the Supreme Court can (and probably will) delay intervention until after a ninth justice is confirmed.
  • Lithwick and Goldstein discuss “courtesy votes”—Justice Breyer’s practice of joining the opposing side to maintain procedural fairness.

D. The Role of the Court in a “Boring Term” ([34:40]–[37:24])

• Is a “dull” Supreme Court actually good for democracy?
  • Lithwick: Some people relieved by a less activist, more restrained Court: “Everybody is distinguishing themselves from the hideousness of Capitol Hill. And this is all awesome.”
  • Goldstein: Uniform national answers are needed; unresolved splits create “chaos in the lower courts.” Consistent judicial oversight is a basic constitutional feature.

Notable Quotes

• Tom Goldstein:
  • “Each side was saying, I really don’t feel like taking any chances today... So let's go to Dullesville and pick up some cases that are really not that controversial.” ([17:02])
  • On Trinity Lutheran: “Are these clauses in state constitutions actually a legacy of, say, any Catholic animus dating back many, many, many decades?” ([19:48])
  • “You found infringement of the design patent... What do you do in terms of the damages?” ([22:12])
  • “If we don’t have nine justices, then those [important issues] are going to be unresolved, and they’re going to be the subject of a lot of conflict and disagreement and a little bit of chaos in the lower courts.” ([35:46])
  • On Merrick Garland: “…if Hillary Clinton wins, rush to confirm Merrick Garland and they make the vote whatever they need it to be.” ([37:27])

Lightning Round & Merrick Garland Nomination

[37:24]–[39:50]

• Goldstein predicts that if Hillary Clinton wins, Senate Republicans may rush to confirm Merrick Garland in a lame-duck session, as he may be the most moderate nominee they can expect from a Democratic president.
• Unlikely Clinton would withdraw Garland’s nomination even if progressives urge her to do so.

Memorable Moments

• Lithwick’s dry humor when addressing the Supreme Court’s lackluster docket:
  • “When the 2016 term is gaveled into session on Tuesday, all eyes will be on. That’s right, playground surface material.” ([15:47])
• Tom Goldstein explaining the significance of IP cases:
  • “Tom Goldstein, making the tiny holes in your speaker sexy since 2016.” ([23:38], Lithwick)

Timestamps for Key Segments

| Timestamp | Segment/Topic | |------------|---------------------------------------------------------------------------------------| | [01:29]–[15:44] | Stop and Frisk: Judge Scheindlin Interview | | [15:47]–[17:48] | Why the 2016 Supreme Court term is "thin gruel" | | [18:25]–[20:57] | Trinity Lutheran & Church-State Playground Funding | | [20:57]–[24:36] | Intellectual Property: Patent and Uniform Cases | | [24:36]–[26:07] | Jury Bias & Race: Key Criminal Justice Cases | | [27:33]–[29:03] | Racial Gerrymandering | | [29:03]–[31:34] | Voting Rights & The Court’s Reluctance Pre-Election | | [31:47]–[34:40] | Transgender Rights Cases on the Horizon | | [34:40]–[37:24] | Is a “Boring” Supreme Court Good for America? | | [37:24]–[39:50] | Lightning Round: Garland’s Nomination & Politics |

Final Thoughts

If you missed the episode, here's the upshot: With only eight justices, the Supreme Court’s 2016 term is purposely low-key, with parties on both sides shying away from big-ticket issues to avoid tied decisions. Still, several cases—though seemingly narrow—carry real stakes, especially in church-state separation, intellectual property, and racial justice. Meanwhile, national debates, such as on stop and frisk, continue to raise urgent constitutional questions, even as the Court pauses to wait for its ninth member.