Amicus with Dahlia Lithwick: "Big Days for Justice" – May 9, 2020

Episode Overview

In this episode of Amicus, host Dahlia Lithwick guides listeners through a pivotal week in American law. The episode features two major segments: a deep dive into the Department of Justice's controversial decision to drop charges against Michael Flynn, and a historic look at the first-ever telephonic Supreme Court oral arguments, with legendary court reporter Linda Greenhouse. The episode explores themes of the rule of law, institutional integrity, Supreme Court transparency, and the ongoing legal battles shaping civil rights and administrative policy.

Key Discussion Points & Insights

1. The DOJ Drops Michael Flynn’s Charges (00:19–21:35)

What Happened?

• The Justice Department abruptly dropped charges against former National Security Advisor Michael Flynn, despite his 2017 guilty plea for lying to the FBI.
• Attorney General Bill Barr’s move raised alarms about the politicization of the DOJ, bypassing norms and traditional checks like presidential pardons.

Susan Hennessey's Analysis

• Summary of Flynn’s Case: Hennessey, executive editor of Lawfare, recounts Flynn’s actions—contacting Russia's ambassador during the transition, lying to investigators, pleading guilty, then reversing his stance (04:00–07:09).
• Institutional Impact: The DOJ's action circumvents the pardon process, signaling a breakdown in apolitical law enforcement and threatening future case integrity (07:09–09:11, 09:11–10:23).
• Undermining the FBI: The government’s brief blames FBI and DOJ officials (Comey, Yates, Strzok, Page), casting them as corrupt and further eroding trust in institutions (09:11–13:35).
• Technicalities and Predication: Hennessey debunks DOJ arguments that procedural slip-ups negate the materiality of Flynn’s lies: "It’s just taking bureaucratic technicalities and making it appear as though it's evidence of wrongdoing, when ... the FBI... had the responsibility, the duty and obligation ... to do so" (10:23–13:35).
• Perjury Traps and Rewriting Norms: DOJ claims of a 'perjury trap' lack merit; there were real questions requiring investigation at the time (13:35–15:56).
• New Norms of Justice: There's nostalgia for an earlier era when allies of the President who lied faced consequences, nuancing that "constitutional rot" now allows for protection of political allies at the cost of the rule of law (15:56–18:09).

Notable Quotes & Moments

• On DOJ Politicization:

  "It is significant because what Bill Barr is doing is politicizing and departing from longstanding positions of the Department of Justice in ways that will actually have significance on future cases..."
  — Susan Hennessey (07:31)

• On the Rot Within Institutions:

  "The rule of law still exists on paper... but they aren't being used for the legitimate purposes of evenhanded justice and instead are being used as tools of favor and protection or punishment and persecution based on... political standing."
  — Susan Hennessey (16:42)

• On Barr’s Attitude:

  "I think it was a little chilling to hear Bill Barr sort of laugh as he makes this observation of, well, history is written by the winners, because he clearly recognizes that at this moment he is the victor and he intends to rewrite history."
  — Susan Hennessey (19:04)

Timestamps

• 04:00 – Hennessey summarizes Flynn saga
• 07:09 – DOJ dropping charges: institutional dangers
• 10:23 – The government's blame-shifting and predication arguments
• 13:35 – Materiality of Flynn’s lies and claims of a perjury trap
• 15:56 – Changing standards for the President's allies
• 19:04 – Barr, history, and rewriting norms

2. Historic Telephonic Supreme Court Arguments with Linda Greenhouse (21:55–60:47)

The New Normal at the Supreme Court

• First Telephonic Arguments: The Court held its first-ever real-time telephonic oral arguments due to the pandemic (21:55).
• Linda Greenhouse’s Perspective: Longtime Supreme Court correspondent Linda Greenhouse describes the change as both “fascinating” and “a very different kind of argument that brings out a different dynamic” (23:36–25:41).

Transparency & Format Changes

• Benefits of Telephonic Format: More transparency and access for the public, but with a loss of organic, free-ranging discussion. Arguments are more rigid, with each Justice allotted time in order of seniority (23:36–27:39).
• Chief Justice Roberts’ New Power: The Chief acts as a “traffic cop,” controlling discussion more than ever before (25:41).
• Clarence Thomas Speaks: Justice Thomas, usually silent, became a regular participant, providing insight into his thought process for the first time in decades (29:38–31:20).
• Justice Ginsburg’s Hospital Calls: Ginsburg participated from the hospital, underscoring anxieties about the Court’s stability and her health (31:20–32:11).

The “Little Sisters” Contraception Case

• Case Significance: The Little Sisters case (Little Sisters of the Poor v. Pennsylvania) addresses the balance between religious liberty and access to contraception under the Affordable Care Act (33:10–38:24).
• Narrative Manipulation: Greenhouse explains how the case, framed around sympathetic nuns, is really a fight over whether any employer can exempt themselves from contraception coverage, not merely religious orders (33:10–36:49).
• Legal History: The journey from Hobby Lobby to Zubik to the present case, and the ever-expanding opt-outs for religious and now even “moral” objections (38:24–40:51).

Administrative Procedure & Judicial Dynamics

• Administrative Law Angle: Justice Kagan and Breyer sought to decide the case on the Administrative Procedure Act grounds, criticizing the Trump administration’s procedural shortcuts in rulemaking (42:10–43:17).
• Chief Justice Roberts’ Skepticism: Roberts’ questions suggested discomfort with the breadth of exemptions (44:32–45:57).
• Impact on Women’s Health: Both Ginsburg and Sotomayor pressed on the real-world harms to women shut out of birth control coverage (46:43–49:41).
• Memorable Judiciary Moments:
  • Ginsburg, even from the hospital, passionately critiqued the cavalier disregard for women’s needs.
  • Sotomayor’s hypothetical about a COVID-19 vaccine brought the stakes into sharp relief (50:06–51:30).

Attacks on the Administrative State

• Non-delegation Doctrine: Gorsuch raised the possibility that Congress had ceded too much authority to the agency—a thread tying the case to conservative ambitions to limit federal regulatory power (51:40–54:32).

Predictions and Term Dynamics

• Possible Outcomes: Greenhouse and Lithwick speculate on whether the case may be resolved on a narrow procedural ground (as in 2016’s Zubik), or whether the Court may push broader, more consequential change (56:01–57:33).
• Unprecedented Term: With a backlog of blockbuster cases, the Justices may extend their term far beyond June—Lithwick jokes about “reading opinions through August” (59:08–60:47).

Notable Quotes & Moments

• On Telephonic Arguments:

  "I’ll almost be sorry when the Court... gets back to normal life because we’ll miss a kind of coherence in a way that the telephonic argument enables."
  — Linda Greenhouse (23:36)

• On Contraceptive Coverage and Narrative:

  "They have so captured the narrative that... it’s not a case about the nuns. They’re interveners in this case... The plaintiff is the State of Pennsylvania."
  — Linda Greenhouse (33:10)

• On the Stakes for Women:

  "You are shifting the employer's religious beliefs, the cost of that, onto these employees who do not share those religious beliefs. And I did not understand RFRA to authorize harm to other people, which is evident here."
  — Justice Ginsburg (49:12)

• On Administrative Delegation:

  "If there are five votes to uphold that, we’re in even worse trouble than you and I think we are."
  — Linda Greenhouse (57:33)

• Term Prospect:

  "I don’t see how... because of the big cases coming up... do you think they’re gonna get out by Labor Day?"
  — Linda Greenhouse (59:08)

Timestamps

• 23:36 – Greenhouse on telephonic argument dynamics
• 25:41 – Chief Justice Roberts as traffic cop
• 29:38 – Clarence Thomas’s newfound participation
• 33:10 – Little Sisters case: narrative vs. reality
• 38:24 – Hobby Lobby, Zubik, and expansion of exemptions
• 42:10 – Administrative procedure questions
• 44:32 – Roberts skeptical about broad exemptions
• 46:43 – Ginsburg and Sotomayor on effect for women
• 51:40 – Gorsuch raises non-delegation doctrine
• 56:01 – Speculation on possible narrow procedural ruling
• 59:08 – Extended Supreme Court term

Conclusion

"Big Days for Justice" delivers a rich, multifaceted analysis of the week’s historic legal developments, juxtaposing the erosion of institutional norms at the DOJ against transformative changes in Supreme Court procedure and jurisprudence. Susan Hennessey’s and Linda Greenhouse’s insights, combined with memorable exchanges from the Justices, illuminate the high stakes for American justice amid unprecedented times.

Useful References

• DOJ Drops Flynn Charges: Threats to institutional impartiality and the ‘rewriting’ of law in the executive branch.
• Supreme Court Telephonic Arguments: Changes in transparency and legal process, with unique dynamics brought to the fore.
• Little Sisters Contraceptive Case: A lens on religious liberty, administrative authority, and the rights of women employees.

For those who missed the episode, this summary captures its essential themes, arguments, and moments, providing guidance for further exploration of law, justice, and the evolving Supreme Court.