Bad History Will Kill America

Summary

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

Episode: Bad History Will Kill America
Date: July 4, 2026

---

Episode Overview

In this special July 4th episode, Dahlia Lithwick and Mark Joseph Stern dissect the turbulent close of the 2025 Supreme Court term with legal historians Sam Bagenstass (University of Michigan Law) and Jed Sugarman (Boston University Law). The core theme is the potentially devastating impact of "bad history" on American law and governance, sharpened by a deep analysis of the Supreme Court's recent decisions — especially the landmark case of Slaughter (gutting independent agencies) and the birthright citizenship ruling (Trump v. Barbara). The discussion foregrounds the opinion’s historical errors, the court’s growing disregard for precedent and sound governance, and the major consequences for American democracy.

---

Key Discussion Points and Insights

1. The "Slaughter" Decision and Its Ramifications

Timestamps: 04:52–25:30

• Court Guts Independent Agencies:

  • Slaughter holds that Congress cannot constitutionally limit the President’s power to fire principal officers (agency heads), save for a unique carve-out for the Federal Reserve.
    • “The president can remove them whenever he wants for whatever reason he wants... Congress can’t limit it.” — Sam Bagenstass (08:01)
  • This decision overturns almost a century of precedent (notably Humphrey’s Executor) that had protected agency independence.
  • Massive implications for agencies overseeing public health, labor, consumer safety, anti-discrimination, and beyond.
  • Left ambiguous: Does the ruling also endanger the civil service as a whole, not just appointees? The justices avoided clear limits, leaving government workers vulnerable.
    • “They left open the argument that Trump is making that the entire civil service is unconstitutional.” — Sam Bagenstass (21:54)

• Carve-Out for the Federal Reserve (‘Cook’ Case):

  • On the same day, the Court ruled the Fed enjoys unique protection against presidential removal.
  • The justices justified this not through constitutional text but by referencing the history of the First and Second Banks, even though those were not analogous.
    • “The banks are not an example as a precedent for the Fed because the Fed exercises executive power… the first and second bank could do none of that.” — Jed Sugarman (14:00)

• Cynicism and Market Concerns:

  • Panelists highlight “stagecraft” in how decisions were released, almost certainly to avoid panicking financial markets before the Fed’s carve-out was made clear.
    • “It’s all about protecting wealth and protecting the Fed and making sure the justices’ 401ks don’t tank.” — Mark Joseph Stern (15:29)

2. Historical Myths and Bad Legal Reasoning

Timestamps: 29:31–40:24

• False Originalism:

  • The court’s majority uses debunked “unitary executive” theories, wrongly attributing unlimited removal power to the president.
  • The Appointments Clause is wrongly cited as constitutional basis; in reality, the Founders’ intent was to curb monarchical power.
    • “There are about a dozen of U.S. legal historians or legal scholars that have systematically overturned these pillars.” — Jed Sugarman (30:26)

• Sotomayor’s Dissent:

  • Lauded by guests for drawing on historical research and exposing the majority’s misrepresentations.
    • “She really did go very extensively… to show why this story that Roberts is spinning about the history is just made up.” — Sam Bagenstass (35:05)
  • Missed opportunity: the dissent could have emphasized the fantasy of “direct presidential accountability” as constitutional bedrock. In reality, agencies can be more representative over time than a president.

• Political Theory and Accountability:

  • The Roberts majority’s theory, that centralized presidential control = democratic accountability, is called “laughable.”
    • “The idea that any voter is even going to know about those decisions, much less be able to hold the president accountable… is also laughable.” — Sam Bagenstass (36:31)
    • “Arguably, independent agencies are more representative of more Americans over more time than any single President is.” — Jed Sugarman (39:50)

3. Partisan Structure and Future Risks

Timestamps: 40:24–45:59

• Unitary Executive Theory: Not Actually Non-Partisan
  • In theory, both parties’ presidents gain power. In practice, the conservative Court can easily check a Democratic president by other means—shadow docket, major questions doctrine, etc.
    • “I actually fully expect that if a Democratic president were to try to fire some member of the FTC… this Supreme Court would uphold that firing and would adopt exactly the same ruling.” — Sam Bagenstass (43:00)
  • The real threat is the Court acting as gatekeeper, enabling partisan selectivity.

4. The Birthright Citizenship Case — Trump v. Barbara

Timestamps: 45:59–56:38

• Decision Details:

  • The Court strikes down Trump’s order restricting birthright citizenship by a 5–4 margin on constitutional grounds (all six for the result, but Kavanaugh “dissents in part,” refusing the constitutional rationale).

• Disquieting Close Call:

  • Guests emphasize this decision was clear-cut by text and history, yet nearly lost. Kavanaugh’s unwillingness to join the constitutional majority signals political calculation or fear of MAGA backlash.
    • “It was very important for Kavanaugh not to be framing himself as someone concurring in this decision… I can only speculate. Could it be that the justices are worried about the MAGA movement? Either way, I’m trying to understand how a decision that everyone thought… [went] sideways.” — Jed Sugarman (49:06)

• Kavanaugh’s “Living Constitutionalism” Dissent:

  • Kavanaugh argues, ahistorically, that the 14th Amendment drafters couldn’t have foreseen current immigration and thus Congress could legislate exceptions.
    • “It is false historically… that there weren’t restrictions on immigration… And that debate was raised and answered by the framers of the 14th Amendment.” — Jed Sugarman (54:19)
  • “They come with their preconceived political and ideological notions and then they just write whatever they want without reading the history, without caring about historical accuracy.” — Jed Sugarman (56:00)

5. Big Picture: Where Is America Headed?

Timestamps: 56:38–61:16

• The Court as Enabler of Trumpism (Sam Bagenstass):

  • Supreme Court has become the biggest enabler of dismantling mechanisms of good governance, except for a few high-profile carve-outs (e.g., tariffs, the Fed), which are driven by elite consensus.
    • “This is not a court that is independent. This is a court that is trimming away the excesses of Trumpism, as they see it, but otherwise significantly enabling it.” — Sam Bagenstass (57:57)

• A “Silver Lining” and a Warning (Jed Sugarman):

  • Roberts and Kavanaugh may still protect common-sense administrative functions (Fed, nuclear regulation, air traffic, etc.), but not out of legal principle.
  • The majority’s opinions are so shoddy, even conservative academics reject their foundations. They’re planting seeds for possible future overruling, given a less partisan court.
    • “There’s a consensus among the people who are going to be the future judges that the Roberts court was not taking this stuff seriously. So if and when a future court wants to overturn this stuff, I think Roberts already planted those seeds.” — Jed Sugarman (59:16)

• Flashing Red Light:

  • Five–four split on birthright citizenship signals dangerous new vulnerability, inviting further erosion in the next wave of executive orders.

---

Notable Quotes & Memorable Moments

• “Bad history is going to kill us all because the demise of independent agencies and the civil service and expertise don’t always register as tectonic shifts. We needed some experts to help explain all the ways this is tectonic.” — Mark Joseph Stern (05:52)
• “This is more power than kings had… on the 250th anniversary… among the things the revolutionaries didn’t like, it was royal power.” — Jed Sugarman (02:51 & 30:52)
• On Roberts’s opinion: “He doesn’t have a single source that says the Appointments Clause has this counterintuitive, countertextual interpretation. Most of us just didn’t think that this was even a plausible argument.” — Jed Sugarman (34:08)
• “Everything you need to know about the Roberts Court is that they are carrying out the agenda of the modern day Republican Party and conservative movement.” — Sam Bagenstass (52:49)
• “At least there are five votes for caring about like basic stability and safety. That’s one thing. The other silver lining is these opinions are so obviously wrong on the law and the history...” — Jed Sugarman (59:16)

---

Timestamps for Major Segments

• Setting the Table & What Changed in Law: 04:52–12:34
• Fed Carve-Out & Cynicism: 12:34–17:44
• Fallout for Agencies & Civil Service: 19:35–25:30
• Historical Debunking of Unitary Executive Theory: 29:31–34:57
• Sotomayor’s Dissent & Theoretical Critique: 35:05–40:24
• Partisan Advantages and Probable Future Scenarios: 42:27–45:59
• Birthright Citizenship Case Analysis & Kavanaugh’s Dissent: 47:18–56:38
• Big Shift: Looking Ahead: 56:38–61:16

---

Conclusion

The episode is a sobering analysis of how distorted historical narratives at the Supreme Court level can “strangle” American democracy. The panel deconstructs the majority’s manipulation of history, the Court’s selective use of precedent and principle in service of power, and the real-world consequences—collapsing government expertise, imperiling impartial agencies, and weakening voter accountability. The closing warnings: these decisions invite future damage unless a new legal consensus—one rooted in honest history and real democracy—wins the day.

---

For further insights and bonus analysis, listeners are encouraged to join Slate Plus and register for the live Amicus Breakfast Table roundtable (July 10, noon EDT).

Transcript

[Sponsor/Advertiser Voice]

When everything is moving all at once, your workforce, your tech stack, your business. You don't need more tools. You need one solution. That's why Paylocity built a single platform to connect hr, finance and IT with AI driven insights and automated workflows that simplify the complex and power what's next. Because when everything comes together in one place, growth comes easy experience. One place for all your HCM needs. Start now at paylocity.com 1

this episode is brought to you by Planned Parenthood Federation of America. The courts matter. The law matters. And so do the people behind the cases, the patients, families and communities Planned Parenthood serves every day. This year, attacks on reproductive freedom have been relentless. The Trump administration and Congress passed a law to defund Planned Parenthood, a move that puts the health of 1.1 million patients across the country at risk. Planned Parenthood is in court to keep this law from taking away care from millions of people. But they urgently need your help. You can rush your gift by visiting plannedparenthood.org defend no matter the size, your donation makes a real difference. Helping Planned Parenthood protect access to care when it matters most. Don't wait. Donate [e-mail] defend

[Dahlia Lithwick]

hey, Amicus listeners, it's Dalia and Mark, and we want you to join us for a true amicus

[Mark Joseph Stern]

tradition, the 250th annual amicus breakfast table.

[Dahlia Lithwick]

Okay, it hasn't actually been that many, but the breakfast tables are great. It's me and Mark live with a super smart panel of legal experts in conversation.

[Mark Joseph Stern]

We're going to dig into what happened during the Supreme Court term, and there's a lot to talk about.

[Dahlia Lithwick]

We're inviting Slate plus members to join our live audience for this taping and the exclusive Q and A that follows from the comfort and the safety of your own laptop.

[Mark Joseph Stern]

July 10th at noon Eastern. To register and to join Slate plus, if you haven't already, go to slate.combreakfasttable that slate.

[Dahlia Lithwick]

This is Amicus Slate's podcast about the courts, the law, and the Supreme Court. I'm Dahlia Lithwick.

[Mark Joseph Stern]

And I'm Mark Joseph Stern.

[Sam Bagenstass]

We have independent agencies that guarantee safety at work, that protect the right to organize, that guarantee safety of consumer products. We have independent agencies that prohibit discrimination. Well, none of these are independent agencies.

[Jed Sugarman]

This is more power than kings had. And by the way, on the 250th anniversary of the nation's founding, it's helpful to remember that among the things that the revolutionaries didn't like, it was royal power. Okay,

[Dahlia Lithwick]

Happy birthday, America. We are feeling every moment of those 250 years after the week that we just had. Right, Mark?

[Mark Joseph Stern]

You know, Dalia, this whole opinionpalooza season has felt even more exhausting and chaotic than other recent terms. Somehow. Could that be possible?

[Dahlia Lithwick]

Yeah, I think it's cumulative. I think it is aggregated over time. And so very much more was accumulated this week alone. Mark and I have been in your earbuds and on your youtubes to talk about the breaking news. But now we're going to start the harder, more durable work of really digging through what happened. And then we're going to start trying to figure out with you what the American people can do about all this.

[Mark Joseph Stern]

Yeah, the questions in our email inbox this year are kind of different from years past. And by the way, that email address is amicuslate.com before, our savvy listeners often asked about precedent and procedure and wanted to discuss doctrine or understand a particular legal turn of phrase. But this year we're receiving so many more emails that are just asking us, well, this is so broken. So what do we do to fix it?

[Dahlia Lithwick]

And we are going to be, and we pledge this to you, tireless and relentless in working toward those answers. And we hope that you will join us for our roundtable on Friday, July 10, where we will be joined in that quest by a panel of legal all stars to digest this past term together. Go to slate.combreakfasttable to register for that live episode taping. That's slate.combreakfast table. Breakfast table. All one word.

[Mark Joseph Stern]

But today we're going to focus on one of the biggest cases of the term that is in danger of being swallowed whole by the birthright citizenship Nina Totenberg news cycle. And that is trumpy slaughter. Because while the birthright citizenship case Trump fee Barbara grabbed the lion's share of the attention on the last days of the term, the case that will leave a crater in the country for years to come is slaughter, a decision that fundamentally reshapes the authority of the executive, executive branch, congress and the high court itself in more ways than most of us can begin to imagine.

[Dahlia Lithwick]

So on today's show, we wanted to focus the aperture on two ideas. One is that the decision in slaughter will have knock on effects you probably haven't even yet begun to contemplate. And two is that bad history is strangling America. And so maybe the most succinct framing we can give you for today's conversation, bad history is going to kill us

[Mark Joseph Stern]

all because the demise of independent agencies and the civil service and expertise don't always register as tectonic shifts. We needed some experts to help explain all the ways this is tectonic. And we're going to talk about the massive stakes and also the incredibly shoddy foundations upon which the majority built its decision. We have two of the very best people here to lay all that out for us.

[Dahlia Lithwick]

Sam Bagenstass is the Frank G. Millard professor of Law at the University of Michigan. He specializes in civil rights, labor and employment law, health law, and governance. From June 2022 to December 2024, Sam was general counsel to the Department of Health and Human Services, where he played a key role in advancing and implementing policies across that department under President Obama. He was an appointee in the U.S. department of justice, where he served as the principal Deputy Assistant Attorney General for Civil Rights, the number two official in the Civil Rights Division. Welcome back to Amicus, Sam.

[Sam Bagenstass]

Thanks so much. Really happy to be here.

[Mark Joseph Stern]

Judd Sugarman is Professor of Law and Harry Elwood Warren Scholar at Boston University School of Law, where he teaches torts, civil procedure, property, federal courts, administrative law, and legal history. He has a J.D. ph.D. In history. He's currently working on two books on the history of executive power and prosecution. He has the distinction of Justice Sotomayor citing five of his articles in her dissent in Slaughter on Monday and on Tuesday, Justice Jackson cited his amicus brief and his article an Originalist Case for Birthright Citizenship in her concurrence in Trump v. Barbara.

[Jed Sugarman]

Thanks for having me.

[Dahlia Lithwick]

So, Sam, we thought we'd start with you and Slaughter because it can be a little bit technical. It's also incredibly important. So I wonder if you would just do us the kindness of setting the table, reminding us what the Supreme Court held in Slaughter and and also what it then carved out in Cook, both handed down the same day. Before we get to this deeper question of whether we can even square the two, just help us understand what changed what the court decided.

[Sam Bagenstass]

So for decades now, Congress has decided, the elected representatives of the people have decided, and presidents have passed laws saying that there are some kinds of functions of government that we want to have some independence from whoever is sitting in the presidency at any given moment. And so the case that was in front of the Court involved the Federal Trade Commission, which was created early in the 20th century and was designed to have a certain amount of insulation from the President. The President appointed members of the Federal Trade Commission, but the appointments were it was a multi member board. The appointments came due at different times, so there was no way to complete completely changed direction of the Federal Trade Commission. And Congress made clear that presidents couldn't remove federal trade commissioners except for good cause. And so the question in front of the court was essentially, was that constitutional? Donald Trump decided very early in his second term to fire the democratically appointed members of the Federal Trade Commission, the two Democrats who were still sitting on the commission, to give the commission a Republican dominating cast. And the court said, yeah, it's unconstitutional for Congress to limit the ability of the president to remove at least the people who count as principal officers, the heads of agencies. Instead, the president has the power to appoint them with advice and consent of the Senate, but then the president can remove them whenever he wants for whatever reason he wants. And the court said, that's something that we get from the executive power in Article 2 of the Constitution. Now, the question then is, well, what about all the other independent agencies? And the court pretty much indicated that there aren't independent agencies. But for one, which is what they said in the Cook case, they said, well, the Federal Reserve is really different. In the Cook case, what President Trump tried to do is fire a person who sits on the Federal Reserve. One of the governors of the Federal Reserve, Lisa Cook, said that she had engaged in misconduct, totally drummed up case of misconduct. And what the court said is she didn't get sufficient procedure to determine whether she'd engaged in misconduct. And it was okay for Congress to limit the ability of the president to remove members of the Federal Reserve Board because that agency, unlike other agencies, can constitutionally be independent. Why? Well, it's nothing in the text of the Constitution. It's more that the Fed is really important to the economy and, as the court said, stands in the tradition of the first and Second Banks of the United States. Now, we can talk in a bit about the reasoning there, which is really laughable, but the basic distinction they drew was there's the Fed, which we're going to say is independent for reasons, and everything else, can't be an independent agency. Instead, every other function of governance pretty much has to be subject to the will of the president in removing whoever sits in charge.

[Dahlia Lithwick]

And I want to ask you this, Jed, because it would be easier to square Cook and Slaughter if the same guy hadn't written the opinions at the same time. And there was a weird moment, just. I don't know if this is too inside baseball, but it seems like interesting straight stagecraft where they were read sequentially from the chamber. So, you know, the. If you're sitting in the chamber, you heard Slaughter and then Cook, but handed out in the press room, bound together. So the folks in the press room got them at the same time and they came online at the same time. But if you were sitting in the courtroom, you found out about one and then found out about the weird carve out. So I guess I just want to ask you, Jed, do you want to make any attempt to do the thing that Sam just kind of declined to do, which is explain the carve out for the Fed? That is if you can give me like your best non cynical, results oriented answer for whether it makes sense to let Lisa Cook live to see another day.

[Jed Sugarman]

I can make sense of Cook. I can, I can make an argument for Cook. There is no way a principled originalist can reconcile slaughter on all of the other independent agencies and then also on Cook. But let me try to give the best account for this. I'll start by saying I agreed with everything Sam said, except I want to expand on when he said that for decades that we have had independent officers. I'd say we've had independent officers from the founding. The founders created a series of independent commissions, A super independent entity, the first bank of the United States. It was super independent because it was private. And the President did not pick the board that ran the first bank of the United States. And what am I talking about? There was a musical that touched on the creation of the first bank of the United States. The issue on the table, Secretary Hamilton's plan to assume state debt and establish a national bank. Secretary Jefferson, you have the floor, sir.

[Sam Bagenstass]

Life, Liberty and the.

[Jed Sugarman]

That is the first rap battle between, between Hamilton and Jefferson and the. And the principle. There is that. Oh, around the founding, the framers of the Constitution, then when they were in the First Congress, like Hamilton, created a very important entity that was completely independent of presidential control. And because the Fed has the most connection to monetary policy, it can be independent. Because the founders created an independent bank with the first bank and the Second bank of the United States. And you'll let me know when I can go cynical?

[Mark Joseph Stern]

Go cynical. Do it.

[Jed Sugarman]

Okay, let's give partial credit to Justice Thomas and some partial credit to Justice Barrett. Because even though they are spectacularly wrong about the history in slaughter, the history, it was obsolete before the ink was dry. And Thomas has the goods on this. You can't rely on the first and Second Banks of the United States. Setting aside the question of what counts for originalism. If all of this happened years after the Constitution was drafted and ratified, even the first and Second Banks, they were entirely private and they had zero executive Regulatory power. The banks are not an example as a precedent for the Fed because the Fed exercises executive power in formulating policy, executing and enforcing that policy. The first and second bank could do none of that. And so this isn't just historians saying so. These are the colleagues who signed on to Slaughter who are basically calling Roberts out for just making this up.

[Mark Joseph Stern]

Just to get even more cynical, I will build on Dalia's point about how these were released and just remind people, normally opinions are published on the website as they're announced in the courtroom. Here, Slaughter and Cook came out on the website at the exact same time, almost certainly because Roberts knew that he was gonna read Slaughter and Sotomayor was gonna read her dissent. And there was gonna be a half hour in between Slaughter coming down in the courtroom and Cook coming down. And the markets might panic during that time and possibly tank because anybody reading Slaughter without Coke right next to it would assume, to Jed's point, that it would also apply to the Federal Reserve because there is actually no coherent or principled way to carve out the Federal Reserve. So I'm glad the markets didn't tank. I'm glad that Roberts changed the rules. But like, really, obviously this is all about protecting wealth and protecting the Fed and making sure that the justices 401ks don't tank.

[Dahlia Lithwick]

Mark, you could totally start to be cynical right now. You go ahead.

[Sam Bagenstass]

You don't have to be particularly perspicacious to be cynical here. I mean, Justice Kavanaugh told you in his concurrence exactly why he was voting to say that there's a special Fed exemption from the rest of the holding of Slaughter. He specifically said he wouldn't unse settle the financial markets that rely on having an independent Fed. I think it's just completely obvious that this court has an agenda of it's going to support executive power. It's going to remove fetters on executive power, except where that threatens, as you say, their 401s or the business class. We saw that in the tariff case earlier this year. Honestly, we saw that in all of the ways in which the Supreme Court attacked what Joe Biden did, using executive power to try to regulate the economy. So I think it's very important not to say this is a principled court that is supportive of executive power. They're supportive of executive power up to a point. And that's the point where it threatens big business interests.

[Jed Sugarman]

I agree with all of that. And Sam, I think that framing is really crucial. I think it's actually more about the fact that, that the only institution in Washington that still has a working majority for the establishment Wall Street Republican Party, which pre existed maga, but is the Roberts Court. And they are basically just making up a pseudo originalist basis for picking out the one independent agency they like, the one that has a conservative Wall street bent. Everything else is the deep state. And I just want to add, I think there are several different parts of the Republican coalition that, that, that have basically demonized the deep State. And some of that is Trump. But a lot of this precedes Trump because there's, there's not only the Wall street part of it and picking and choosing which independent agencies they like, but there's also, I think, a culture war component of it. And there was a Cold War component of it and a Watergate component that's come up. I mean, Scalia revived this unitary executive theory. He was in the Nixon administration and the Ford administration as Watergate unfolded. And then he was the appoint. He was the justice on the bench that wrote a solo dissent in 1988 called Morrison vs Olson. So that decision was seven to one, but now that decision has been treated like a majority opinion. Why did that happen? In the 70s and 80s, there was a sense that the problem of Watergate for certain Republican lawyers was not Nixon, but was Congress and the courts encumbering a president in the middle of the Cold War. And from Nixon to Reagan, there was a sense that the deep state was more sympathetic to pluralism and civil rights. And there's also this culture war component of the deep state being too secular and too out of step with, quote, unquote, real America.

[Mark Joseph Stern]

Yeah. So let's talk about all of those other agencies that are not the Fed, that are now subject to Trump's direct control. Sam, can you help us understand the size of the hole that Slaughter blew through? Not just like the administrative state, but America government, the structure of our government. Because for a lot of people, this is still an abstraction, but what will this actually look like in practice?

[Sam Bagenstass]

So if you look at all of the things that the government does, there are a lot of things that we don't want to be decided based on day to day politics. And the people and their representatives through the years have made clear that they don't want these things to be decided based on day to day politics. I mean, start with an area that I did a lot of work in during the Biden administration, you know, public health. So obviously there are a lot of very political choices that get made in public health, but there's also a Very substantial component of that. That's just about science. That's just about how do viruses get transmitted? What are the molecules that are going to effectively attack those viruses? What are the side effects? Right? We want to be making those decisions not based on someone's whims, not based on what's going to serve the polls. We want those decisions to be made based on science, Right? We want them to be made based on at least the best understanding of what is going to lead to transmission of a disease, what are the effective ways of preventing it, what are the costs of preventing it, that sort of thing. And what but this decision does. It follows on actually another decision just a year ago that completely gutted Congress's guarantee of independence for an important part of public health, which is the US Preventive Services Task Force that made recommendations on what are effective preventative health services. The court there said, reading a statute, totally ridiculously, in light of these constitutional principles, that this agency that Congress said should be independent actually can't be independent. It's got to be subject to the will of the president. But we have independent agencies that do all sorts of things. We have independent agencies that guarantee safety at work. We have independent agencies that guarantee safety of consumer products. We have independent agencies that protect the right to organize for workers. We have independent agencies that prohibit discrimination. Well, none of these are independent agencies anymore. Every one of these now is subject to the whims of a president. The president can just fire all the people who are leading those agencies who he disagrees with, even if they've been properly nominated, even if their terms aren't up yet. And that's going to make a huge difference. That's going to enable things like what we've seen in the first year and a half of the Trump administration, where he was acting as if the Supreme Court had already decided this case, where he was basically politicizing all of these aspects of governance that need to be carried out on a nonpartisan and impartial basis. I think the other thing to point out here about the implications is the court and Chief Justice Roberts in his opinion, was very, very squirrely about how far it extends. So. So the analysis in the opinion is we need to have a president who is accountable to the people for the decisions made by his government, which means he has to be able to fire his subordinates. That's the word that Roberts uses over and over, his subordinates, if they don't do what he wants. Well, what is a subordinate? I mean, we know it means the head of an agency what in constitutional terms, we'd call a principal officer of the United States. But does it extend below the level of agency heads? Does it extend to other political appointees within the agency? And then the $64,000 question here is, does it mean that the civil service as a whole is unconstitutional? Ever since the 1880s and the enactment of the Pendleton act, we have understood in this country that government works better for the people if the mass of workers in the government are hired and promoted based on merit and not based on which political party or candidate they support. And, you know, Trump has indicated, and people within his administration have indicated they think that's unconstitutional, that the president ought to be able to hire and fire at will all the people within the government. And you actually see career civil servants at the Department of Justice being fired without cause. And when they're asked why, the email they get says, you're fired because of Article 2. Right. So we know this is a president who has already asserted the power to fire career civil servants based on his understanding of the Constitution. What the court did in Slaughter is it didn't say that's right. But it also could have very easily said, look, we're only talking about political appointees who can be fired this way. And they didn't do that. They left open the argument that Trump is making that the entire civil service is unconstitutional. Once you get rid of the civil service. Right. That is a dramatic sea change in the way we do government in this country, and that will make government work much more poorly across everything it does for the people.

[Mark Joseph Stern]

Yeah, Sam, And a point that I think got lost in this discussion is that the federal agency that's supposed to protect the civil service from unlawful and partisan firings, the Merit Systems Protection Board was meant to be independent, but Trump fired its Democratic members and paralyzed it for months, and it could not enforce those protections. And so even if, in theory, this decision doesn't reach directly down into the civil service, it still allows the president to take over the agency that is tasked with protecting the civil service. So clearly, the ramifications will be bad for federal workers. We just aren't totally clear on how bad yet. Right?

[Sam Bagenstass]

That's right.

[Dahlia Lithwick]

Let's pause now to hear from some of our sponsors. This episode is brought to you by Ground News. Here at Amicus. We read a lot about the Supreme Court, but it's not the only news we consume. And like you, we seek out different sources on the same subject to get the full story. Ground News is a great way to get down to the facts. It's an app and website that makes it easy to compare news sources, break free from algorithms and think critically about where you're getting your news. Recently, I went to Ground News to learn more about the resignation of British Prime Minister Keir Starmer. Ground News had rounded up coverage from 40 different sources. According to the platform, 46% of the coverage is center or nonpartisan. But if you click right, you can see right leaning coverage that claims Keir Starmer offered Britain nothing. And if you click left, you'll see headlines lamenting that Keir Starmer is, quote, the latest casualty of the Downing street meat grinder. The Nobel Peace center called Ground News, quote, an excellent way to stay informed, avoid echo chambers and expand your worldview. Here's how to get started. Go to groundnews.comac to get 40% off their Unlimited Access Vantage subscription. That's groundnews.comac and you'll get 40% off the Vantage subscription. Whether you subscribe yourself or send it as a gift, make sure to use our link so that they know that we sent you. That's groundnews.com ac.

[Sponsor/Advertiser Voice]

This episode is brought to you by Planned Parenthood Federation of America. The courts matter. The law matters. And so do the people behind the cases, the patients, families and communities Planned Parenthood serves every day. This year, attacks on reproductive freedom have been relentless. The Trump administration and Congress passed a law to defund Planned Parenthood, a move that puts the health of 1.1 million patients across the country at risk. Planned Parenthood is in court to keep this law from taking away care from millions of people, but they urgently need your help. You can rush your gift by visiting plannedparenthood.org defender no matter the size, your donation makes a real difference, helping Planned Parenthood protect access to care when it matters most.

[Sam Bagenstass]

Don't wait.

[Sponsor/Advertiser Voice]

Donate [e-mail] defend.

AI isn't just digital. It's physical. Hospital floors, factory production lines, autonomous systems making real time decisions in environments where the stakes are real and the margin for error is not. The engineers taking AI from prototype to physical deployment need infrastructure that's been proven under pressure. That's AWS purpose built to help you move from concept to production at scale without compromise. The next frontier of AI is in digital. AWS is ready to take you there. Visit aws.comai AI that's ready when you are.

[Dahlia Lithwick]

And we are back talking about the end of the 2025 Supreme Court term with Sam Bagenstass and Jed Sugarman.

[Mark Joseph Stern]

So Jed, I hear you getting Ready to dive into the history. You're very excited. Rightly so. As an expert on this. You know, this was, of course, a seismic decision. It came right alongside another seismic decision that overturned another precedent.

[Sponsor/Advertiser Voice]

Right.

[Mark Joseph Stern]

This overturned Humphrey's executor, which was 91 years old. The, the next day, the Supreme Court released a decision that overturned a campaign finance decision that was more two decades old. Clearly, there's a lot of reversals going on. Not a lot of respect for stare decisis, nor a lot of respect for real history. So. So, Jed, we'll start with you, and let's dig into this terrible history and slaughter, because the Sotomayor dissent is pretty clear that the majority just got it wrong in every way, got it absolutely backward. You said the history is already obsolete. Can you sort of give us the overview of what Robert's butchered?

[Jed Sugarman]

Well, so let me tell you just about what is what's in the Constitution and what's not in the Constitution and what sort of felt new and off the wall in this decision. So the unitary executive theory has, has had three pillars, especially in the revival under Scalia's dissents. And then Roberts wrote two opinions, one in 2010 and one in 2020. These, these pillars have been debunked before. There are about a dozen of U.S. legal historians or legal scholars that have systematically overturn these pillars. The three pillars are or were the first line of Article 2 for the presidency and the Executive branch is that the executive power shall be vested in a President of the United States. Okay? That's not a removal clause. This is like, you know, conservatives usually criticize, relying on penumbra and emanations. So some of these other scholars have made this point clearly that there's an irony of that. What the Warren Court was criticized for by conservatives, this is the conservative Warren Court under Roberts that they read that they read into and infer from executive power that there must be a removal power. What Sotomayor calls out is that this is really a royalist assumption, and it was also false. This is more power than kings had. And by the way, on the 250th anniversary of the nation's founding, it's helpful to remember that among the things that the, that the revolutionaries didn't like, it was royal power. Okay? So, so there's this irony that I think Sotomayor picks up. Second pillar is the clause in the same Article 2, that the President shall take care that the laws be faithfully executed. And Roberts repeatedly misunderstands that that clause is not chiefly a Power granting clause. It is a duty binding clause. It limits executive power because it requires faithful execution. Sotomayor also nails that point with the recent history. This is one of the articles that I co wrote. And then the third pillar is something called the decision of 1789. It is way too complicated and confusing for everybody for me to get into the details of that. Let me just say that not only has it been debunked by legal historians repeatedly, there's now a consensus among conservative originalists, whether they say so publicly or not, that the first Congress did not endorse Roberts version of the unitary executive theory. Okay, those were the three pillars. Let me just say the thing that is really off the wall that I think people are really sort of laughing at is that Chief Justice Roberts leads with the most bonkers anti textual claim that it is the Appointments Clause that is the basis for this unconditional Presidential power. But it's curious that he wouldn't actually quote the actual text of the Appointments Clause. So I'll do that for you here. Listen for where you hear any difference on appointment about whether the President has this unilateral power. The President shall have the power by and with advice and consent of the Senate to make treaties provided 2/3 of the Senators present concur and he the President shall nominate, comma, and by and with the advice and consent of the Senate comma, shall appoint ambassadors, judges and all other officers of the United States. And it was none other than Justice Scalia and an originalist opinion called Noel Canning who waxed poetically about the importance to the Founders of setting a limit on what had been a unilateral royal power of nominating and appointing unilaterally. And Scalia goes on and on in Noel Canning rightly about how important it was to the Founders that the President not have unilateral appointment power. This is, you know, heads I win, tails you lose. Because Roberts doesn't have a single source that says about the Appointments Clause that it has this counterintuitive, countertextual interpretation. Most of us just didn't think that this was even a plausible argument. I had to be persuaded to put this back in my amicus brief. And I just was like, there's no way that anyone who actually reads the history, who cares about the history, is gonna claim it. And it's what Roberts led with, I think that's very revealing about whether Roberts reads the amicus briefs or reads the history, because this has been debunked repeatedly by none other than Justice Scalia.

[Dahlia Lithwick]

Sam, I Guess we wanted to just give you a chance to add any thoughts you have on the Sotomayor dissent.

[Sam Bagenstass]

Well, I think the Sotomayor dissent is very good and very strong, and I think it shows. She really did go very extensively through the amicus briefs and the underlying scholarship to show why this story that Roberts is spinning about the history is just made up. It's just not the true story. It's been debunked. I think she does a nice job of highlighting the extensive implications for our government of this decision. And she in particular highlights that Roberts is leaving open the challenge to the civil service system as a whole. Again, it would have been really easy for him to say, I'm just talking about the highest level political appointees here. Of course, the president gets to remove them. And you could have arguments about that from a democratic perspective, from a democratic theory perspective, from a governance perspective. But the idea which is left open by this decision and is in some ways supported by the logic of this decision, that the civil service is unconstitutional, that would be dramatic. And I think she does a really nice job of pointing that out. I think the one thing that I would have liked to have seen more of in the dissent, sort of it's there, but it's not highlighted as much as some of these other points, and we haven't talked about it yet, is there's not just a historical theory behind Roberts decision, there's a political theory behind it. And the political theory behind the decision is the way that democracy works is there's one president, he's responsible for everything that happens within the executive branch. He's responsible for all execution of the laws, and he is therefore responsible to the people who can hold him accountable for everything that happens within the government. And Roberts says this over and over and over again in these decisions. And if you think about it for five seconds, that's also a pretty laughable proposition. I mean, first of all, presidents stand for election. You know, can get elected at most twice, right? So they stand for reelection at most once. So there's a very limited opportunity for the people to hold the president accountable for anything. There are a bazillion decisions that get made under the aegis of a particular president's executive branch. The idea that any voter is even going to know about those decisions, much less be able to hold the president accountable for any of those decisions, some of which may point in different directions. Directions from a voter's point of view, when the voter has a binary choice, essentially, are you going to vote for the Democrat or the Republican. It's also laughable to think that such a blunt vote sends any kind of a Democratic signal one way or another about any particular policy. And also, the idea that democratic accountability only happens once every four years in presidential elections just ignores the fact that it's Congress who is democratically accountable every two years, and whose members may sit for election over and over and over and over and over again who pass these statutes to create protections for people who run particular agencies, and that the people seem to want that because it leads to better government. So there's a whole political theory that Roberts is basing this opinion on that just seems completely false, and I'd like to see more engagement with that as well.

[Jed Sugarman]

Sam, that's 100% right. And it's 100% right as a matter of originalism. So Roberts has been spinning this theory of the President as the most directly democratically accountable officer in Sayla law. He wrote that the President is, quote, directly accountable to the people through regular elections, and the President is, quote, the most democratic and politically accountable official in government. And he wrote those sentences literally the same week that they handed down the most important recent opinion about the Electoral College. And Roberts is engaging in such deliberate dissonance because the Electoral College was a deliberate decision not to make the President what he claimed the President was. From the founding, the Founders, they did not think of the President as a representative of the nation, certainly not directly. At the Founding, there were officers who were directly elected, that was the members of the House. And one could also make an argument about representation, that the least representative officers are the ones where it's a.01 proposition, because then you're only representing 51%. Or with our electoral college, maybe it's only 48 or 47% of the electorate. Whereas independent agencies, because of staggered terms and multiple sources of appointing and confirming, have to reflect Presidents and Senates over many years. So arguably, independent agencies are more representative of more Americans over more time than any single President is.

[Mark Joseph Stern]

I'll just add, I think this is what irks me the most about Robert's opinion in Slaughter. It isn't enough for him to regurgitate all of this bad history that's been totally debunked, or to present this tendentious theory of the Constitution as though it's obviously correct. It's for him to then then gaslight us by saying, oh, and by the way, this is good. Like, this is the system that you want in a democracy, the system that we're creating where there are no independent agencies except the Fed and everybody in the executive branch is controlled by the President in this dictatorial way that's fantastic for democracy, and you should be thanking us. Like, dude, if that were true, you wouldn't have carved out the Federal Reserve. Like, you yourself obviously see that it is, in fact, not beneficial under at least some circumstances for the president to have this authoritarian control over all federal agencies. You just happen to like this one because it protects your wealth. And so it really bothers me when Roberts and all the other unitary executive theorists try to convince us that the system they are forcing upon us, that is not set up by the Constitution, that was not envisioned by the framers, is in fact, good for us and the American people and for accountability. This theory of accountability is stupid. It is facially false for all the reasons that Jed and Sam laid out. It is bad for us as the American people. It is bad for democracy. And I really cannot take Roberts gaslighting me about it for one more second. So I had to get that off my chest. I also wanna pivot to, I think, a related question, which is what we say to the defenders of slaughter and the defenders of the Supreme Court, who claim that this ruling is not partisan because it helps Democratic and Republican presidents alike. There are a lot of political scientists who have raised concerns that even if the unitary executive theory is nonpartisan on paper, it creates structural advantages for Republicans over Democrats. And I'd really like to dig into that. Sam, maybe we can start with you.

[Sam Bagenstass]

Yeah, I mean, I think we saw in the Biden administration that. That the very partisan, I will say, Supreme Court had all sorts of ways of reining in the executive power of a president who they didn't like and whose outputs, whose policies they didn't like without taking on this issue in particular. So, you know, I actually fully expect that if a Democratic president were to try to fire some member of the FTC in the future, some member of the nlrb, some Trump appointee, this Supreme Court would uphold that firing and would adopt exactly the same ruling that it adopted here because they'd find other ways of reining in the president's power. I mean, think about what happened when Biden was president. The Major questions doctrine becomes a very powerful tool for the Roberts Corps to stop President Biden from using statutes, according to their text, to achieve relatively progressive outcomes. Court doesn't like those outcomes. Court steps in and says, well, yeah, the text of the statute may support what the president's doing, but this seems to us like a really big deal. And so we'd want something a lot more specific, sort of applying a baby non delegation doctrine. And there are all sorts of other ways in which an activist Republican court can rein in an activist progressive president that don't require using this particular tool. So I mean, yeah, it's great for the next Democratic president that they'll be able to fire the Trump appointees in the NLRB and in the FTC and whatever. But then when their new appointees try to actually get something done, what they're going to find out is that the courts are standing in their way.

[Dahlia Lithwick]

We are going to take a short break.

[Sponsor/Advertiser Voice]

Most AI projects never make it past the demo. They show real promise in a controlled environment, then stall somewhere between proof of concept and real world deployment. The bottleneck is in imagination, it is in budget. It's the path from pilot to production. AWS helps you walk that path. Not someday now. Don't just build AI, run it. Visit aws.com AI AI that's ready when you are. Agents are getting smarter every day, but even the smartest agents get stuck without the right context and the right tools. That's where Notion comes in. With the recent launch of custom agents, Notion became the collaborative AI workspace where teams and agents work side by side. And now their new developer platform is turning that workspace into infrastructure developers can build on what sets Notion's developer platform apart. The collaborative workspace and the platform you build on are the same thing, and unlike other single player platforms, Notion is built for teams with permissions, visibility and governance from day one. Plus it's easy to use CLI authenticates in one line and with a cloud based zero infrastructure path, you can just write your code, deploy and you're done. Learn more about Notion's developer platform today at notion.comacast that's all lowercase letters notion.comacast to try Notion's developer platform today. Notion.comacast.

[Dahlia Lithwick]

Let's return now to our conversation with Sam bagginstass and Jed Sugarman. I want to also just re up my reaction to the oh good, this will be great when a Democrat takes office. I was sort of astonished by it. It was as though the Biden administration never happened. Like we didn't have a proof text for exactly how this went. And it was like a very weird talk about bad history. I found it to be quite a baffling turn. I want to turn, if we might, for the last few minutes of the show, to the birthright citizenship case Trump v. Barbara yes, glove saved. The justices strike down Donald Trump's executive order restricting Birthright citizenship. But as Mark and I have suggested all week long, that was a 5, 4 decision on the constitutional question. Justice Kavanaugh said it's only a violation of the, the statute. It could be tweaked by Congress tomorrow to change the rules. And I'd love to have the first cut response from each of you to what just happened in the birthright citizenship case, especially since it was the last to come down and somehow becomes the template for the conversation all summer.

[Sam Bagenstass]

Yeah. So I think, number one, there is a strategy behind it being the last to come down. John Roberts is very good at this. So he's setting the narrative that this is a court that's willing to stand up to Donald Trump. And, you know, the answer is actually, this was a remarkably easy case on the text, on the history, on all the long standing understanding of the Constitution. The idea that it was 5 to 4 on the constitutional question is just absolutely baffling and shows just how broken this court is. I mean, the fact that, that they're doing something that should be just the table stakes essentially, of someone of a Supreme Court interpreting the Constitution the way the Constitution has been uniformly interpreted for decades, over 100 years, that's not something to give them enormous credit for. The thing I really worry about is just how close the case was. We have a political movement in this country that is, is an anti immigrant political movement that is in many significant ways a deeply, problematically nationalist political movement that has fundamentally changed understandings of the Constitution by a large swath of judges, and they've put their activist judges on the courts up to and including the Supreme Court. And that is what is leading to this problem. So, so I actually see the 5 to 4 decision not as something where we can say, whew, that was a close one, but where we say, wow, this is a flashing red warning light about just how bad and how aggressive this court is.

[Jed Sugarman]

Let me add an observation that I think seems like it might be in the weeds, but it really tells us something about what the court's really thinking about. This is something that first years learn about. This is what we spend a lot of time teaching first years is how to read for a holding and to understand what's the holding, what's the analysis behind that holding, and what the dicta is. Here's a little tidbit that I think speaks volumes. Okay, why did Kavanaugh say that he's dissenting in this opinion? The holding of the decision is that Trump's executive order is invalid and there were six votes for that. And those would all be concurrences because they all reach the same holding. The way that the court says this is reversed or that hands down a decision that overturns the executive order. Any justice who is voting with that is concurring. And yet Kavanaugh, though he votes for that result only for the limited statutory purpose and says explicitly, I don't think the Constitution gets there. That's still formally A1. L would read that and say that's a concurrence. Kavanaugh went out of his way, bent over backwards to say that he was concurring in the judgment and dissenting in part. It was very important for Kavanaugh not to be framing himself as someone concurring in this decision. It was very important for Kavanaugh to announce to the world that he was partly dissenting. I mean, this is. This is a little bit like the Solomonic baby, except the baby is a concurrence. Why? I mean, I can only speculate. Could it be that the justices are worried about the Maga movement? Justice Roberts and Justice Barrett have been attacked by the far right wing white nationalists. In my own experience on social media after this opinion has come down, I've seen anti Semitic stuff in my feed about me. I don't know whether it's fear or favor that Kavanaugh did something that one LS should identify as weird. Does Kavanaugh and do Gorsuch identify more with how they're perceived by the base of the Maga movement or are they afraid of the base of the Maga movement? Either way, I'm trying to understand how a decision that everyone thought after oral argument, by listening to it, they understood how Kavanaugh and Gorsuch were going to sign on to a majority opinion in some way and on the 14th amendment in particular. And it is not for coherent, legible legal reasons.

[Mark Joseph Stern]

Such a good point, especially about the way that Kavanaugh styled his opinion. I think it's so important and one of the reasons that Dalia and I kept hammering that on the constitutional question. This is five, four. Like, clearly Kavanaugh wanted us and the world and Donald Trump to see that he dissented from the constitutional holding, which is the most important part. I do just want to spend one beat talking about his dissents, which is in my view, an abomination. He basically said, look, the drafters of the 14th Amendment couldn't have possibly foreseen what was going to happen next. They didn't think about immigrants, which is untrue. They didn't think that there would be all of these people in the country whose kids would claim citizenship, which is is at least contestable. But then he, he said, okay, well since in my subjective view the framers wouldn't have wanted those children to get citizenship, then Congress can just go ahead and create a new exception that cuts those kids out of the promise of the 14th Amendment, even though there is nothing in the text that even remotely supports that. I'll start with Sam and then go to Jed. I mean, this is living constitutionalism at its worst, right?

[Sam Bagenstass]

I mean, look, I think if there's one thing that we've seen from the Roberts Court is they may claim to be an originalist court, but they are a living constitutionalist court. Everything you need to know about the Roberts Court is that they are carrying out the agenda of the modern day Republican Party and conservative movement. And that is fundamentally not about what happened in 1787 or what happened during Reconstruction. That's fundamentally about now. No matter how hard they try to dress up what they're doing in original scarce.

[Jed Sugarman]

That's 100% right. And it's exactly, I think this Kavanaugh premise, the thing he thinks is a dissent. I have seen that argument in far right wing circles because what the argument was is the drafters of the 14th Amendment could never have imagined, quote, unquote, illegal immigration because there were no federal immigration laws in place when the 14th Amendment was written. There was no such thing as illegal immigration and there was no such thing as as temporary immigrants coming to work. That's why I did this research, because I saw that argument and then I finally decided to write that article when Trump came back into office and wrote the executive order. It turns out that if you're gonna make historical arguments, you might wanna read historians and you might wanna read their amicus briefs and you might even wanna read Jackson's concurrence, which was explicitly addressing these assumptions. It is false historically that there weren't restrictions on immigration, first of all because there was restrictions on the slave trade. If you read about African American history, it is obvious that there were restrictions on immigration and people either came into or were brought into the country illegally and they were illegally in the country. What do you do about that? That's part of why the 14th Amendment was written, was to address that problem. Blackstone talked about how England restricted Roma, what we pejoratively call Gypsy Roma were restricted from England and Blackstone recorded that Blackstone is one of the key sources for originalists and that was cited by the amicus Briefs, multiple briefs. And then this is where I come in. As a PhD historian, I had to read about immigration history to get my PhD and I learned about how there was a lot of xenophobic, anti immigration politics in the mid 19th century. The know Nothing party was built on that. And it turned out that California had started passing restrictions on Chinese immigrants and framed those immigrants as temporary workers. That's where the racist label coolie comes from. Calling Chinese coolies with that racist label was to say they're not loyal to America. They're here temporarily to send money back to China and then go back to China. And that debate was raised and answered by the framers of the 14th Amendment that when a senator from Pennsylvania said, surely you don't mean to be extending citizenship to gypsies and Chinese temporary workers. The drafters of the 14th Amendment, Jackson quotes, and this is in the amicus brief, like in mine, is that they directly addressed these kinds of immigrants and said directly for those temporary sojourners, they recognized that they were California based. Restrictions on the Chinese, it didn't matter. Birthright was the big bright line rule. And I have to say I can only be charitable and say Kavanaugh didn't read the articles and the briefs because I have to imagine that if he had, he would have been embarrassed enough to at least try to address them. This is why they're not originalists. They don't care about the history. They come with their preconceived political and ideological notions and then they just write whatever they want without reading the history, without caring about historical accuracy.

[Dahlia Lithwick]

I'm so glad, Jed, that you landed on Justice Jackson's dissent, because she's been taking originalism on its own terms. And it's really important if you are going to take the history seriously, to have a voice on the court who is doing that every day, incredibly. And it's just a masterclass in how not to cede this ground to people who don't take it seriously. Before we let you both go in a few minutes, absent more confusion about retirements, we're gonna draw the curtain on a term that has really been characterized, I think you've both said, by bad history, bad textualism, bad science, bad balancing of the branches of government and their checking functions. And I just like one more answer from each of you in your own respective lanes and areas of concern. How does it play out in the aggregate? What is the big shift that we are going to see in the coming months and years as a result of the cases we've talked about today, Sam?

[Sam Bagenstass]

Well, I think the big takeaway from this term is you have a Supreme Court that in large ways and small has repeatedly enabled the Trump administration's destruction of the mechanisms of governance in this country. And that has been so even when there are very good legal arguments, a lot of that has happened on the shadow docket. And so people haven't seen it. But what you have is a court that has basically been Trump's biggest enabler. And then they have two very high profile decisions on tariffs and on birthright citizenship that they can point to to say, aha, we're standing independently. But notice what they are doing is enabling Trump on all of the issues except for the ones that very powerful members of the Republican Party coalition disagree with Trump on. This is not a court that is independent. This is a court that is trimming away the excesses of Trumpism as they see it, but otherwise very similar, significantly enabling it.

[Jed Sugarman]

I think that even though we can look back at these opinions and say they're clearly not doing law and they're not doing originalism, they're exercising their own intuitions and then reverse engineering and gerrymanding the history and the law to get there, at least there are five votes for common sense. The Cook majority included Roberts and Kavanaugh, who not because of law or history, but out of worry about the markets. My hope is that in the same way Roberts and Kavanaugh also worry about nuclear power and nuclear regulations, right. That they don't want, they don't want Three Mile Islands, and they also manufacture a reason for there to be independent Nuclear Regulatory Commission. I don't see that in the opinion, but I don't think that matters. I think there's common sense to that and things like how about air traffic? If Roberts and Kavanaugh fly around the world or in the country, they might want to make sure that there aren't any more air traffic control accidents. It's a small, it's cold comfort, but it's a silver lining here that at least there are five votes for caring about like basic stability and safety. That's one thing. The other silver lining is these opinions are so obviously wrong on the law and the history. To conservative professors in the federal society that are publishing what they've been saying to me over the last decade, which is this history's wrong. And I think that there's a consensus among the people who are going to be the future judges that the Roberts court was not taking this stuff seriously. And so if and when a future court wants to overturn this stuff. I think Roberts already planted those seeds in these opinions. The last problem is I think the fact that they got to 5 to 4 on the constitutional question and only 5 4. It's going to invite another fight, another executive order and another future fight over birthright citizenship, at least their five votes. That's a very small silver lining.

[Mark Joseph Stern]

Jed, thank you so much for coming on.

[Dahlia Lithwick]

Sam, thank you for being with us. We wish both of you a complicated, happy, rousing force and we thank both of you for your big brains and your good work. Take good care.

[Jed Sugarman]

Thanks so much.

[Sam Bagenstass]

Yeah, thanks.

[Dahlia Lithwick]

If you like this conversation, there is so much more waiting for you in our bonus pop up episodes that we released earlier this week. Slate plus members can access those conversations in full right now. Visit slate.comamicus+ to get access wherever you listen.

[Mark Joseph Stern]

To get all our Opinion palooza extras across slate.com and here on Amicus, go to to slate.com amicusplus you can also subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify. By joining, you'll be supporting our work and for that we are eternally grateful. Thank you.

[Dahlia Lithwick]

And speaking of our Slate plus members, this is just a reminder. Do not miss the Amicus Breakfast table. On Friday, July 10th at noon EDT, Mark and I will be in conversation with Steve Ladock, Sherilyn Eiffel and Nico Bui.

[Mark Joseph Stern]

Slate plus members can sign up to be in the live online audience for this special end of term conversation. Go to slate.combreakfasttable to sign up for online access. Slate plus members will also have access to an exclusive Q and A with Dalia and me. Submit your questions now to amicusleep.com thank

[Dahlia Lithwick]

you so much for listening. Thank you so much for your letters and questions, especially this past week. Keep them coming. We are always reachable by [e-mail] you can find [e-mail] Amicus Podcast. You can also leave a comment if you're listening on Spotify or on YouTube. Or you can rate us and review us on Apple Podcasts. Sarah Burningham is Amicus's Supervising Producer. Our producer is Sophie Summergrad. We had big help today from Joel Meyer. Hillary Fry is Slate's Editor in Chief, Susan Matthews is Executive Editor, Mia Lobel is Executive Producer of Slate Podcasts and Ben Richmond is our Senior Director of Operations. We'll be back with another episode of Amicus next week. Till then, Goodbye Mark. Happy 250th birthday, America.

[Mark Joseph Stern]

Bye Dalia. Happy 250th.

[Dahlia Lithwick]

This is Hannah Burner from Giggly Squad.

[Sam Bagenstass]

Opill is the first over the counter

[Dahlia Lithwick]

daily birth control pill available in the us. Let's be real. Getting a birth control prescription is not always easy and it's so much admin.

[Sam Bagenstass]

In fact, about a third of women

[Dahlia Lithwick]

face barriers to access prescription birth control. Between scheduling appointments, missing work class, or

[Sam Bagenstass]

just trying to exist.

[Dahlia Lithwick]

It's a lot. But now opill is putting birth control in our control. Opill is a daily birth control that's

[Sam Bagenstass]

FDA approved, full prescription strength and estrogen

[Dahlia Lithwick]

free and 98% effective when used as directed. Grab it online or at most major retailers. No prescription or doctor's appointment needed. So if you're thinking about birth control,

[Sam Bagenstass]

check out opill to see if it's right for you.

[Dahlia Lithwick]

Use code giggly for 25% off your first month of opill at o op

[Sam Bagenstass]

I l l.com that's codegigli P-I-L-L l.com

[Dahlia Lithwick]

birth control in your control. We love to see it.

[Sponsor/Advertiser Voice]

Every AI provider will tell you that their AI is secure, that your data is protected, that you can trust their models to behave. Most offer you a promise. AWS offers you proof. AWS AI is the only one that applies mathematical verification to AI governance, ensuring your AI agents do exactly what they're designed to do and only that. That. No guesswork, no hoping. The guardrails hold. In A world where AI trust is assumed, AWS is the one place you can measure it. Visit aws.comaiai that's ready when you are.