Amicus With Dahlia Lithwick | "Breakfast Table Redux" (June 28, 2017)

Main Theme / Purpose

In this “Breakfast Table Redux” episode, Dahlia Lithwick convenes a roundtable with two eminent legal commentators—Mark Joseph Stern (Slate) and Professor Pam Karlan (Stanford Law School)—to dissect the final week of the 2016-17 Supreme Court term. Together, they examine the term’s significant decisions, the shifting ideological dynamics with the addition of Justice Gorsuch, and preview seismic issues on the Court’s horizon, such as the travel ban, religious liberty, and gerrymandering. The discussion is candid, sharp, and often humorous, contextualizing SCOTUS's rulings and internal politics for a broad audience.

Key Discussion Points & Insights

1. The Court’s Public Legitimacy and “Returning to Normal”

[02:52]–[05:43]

• Last term was tumultuous due to Justice Scalia’s death and the Garland blockade. Now, with Gorsuch seated, the Court is "back in business," but largely out of the public eye.

• Pam Karlan: Notes that until the travel ban decision, the public's attention was elsewhere; Gorsuch’s debut is more impactful than many realize.

• Mark Stern: Admits underestimating Gorsuch, calling his early voting record “catastrophic to the progressive constitutional project” and placing him ideologically “to the right of Justice Alito.”

  “His votes thus far have been just catastrophic to what I call the progressive constitutional project. He is an arch conservative, almost certainly to the right of Justice Alito.” — Mark Joseph Stern [04:08]

2. Gorsuch’s Ideological Alignment and Stare Decisis

[05:43]–[09:27]

• Pam: Gorsuch is poised to revisit established doctrines, such as Section 1983 civil rights litigation, with a Thomas-like skepticism for precedent.

• Discusses Gorsuch’s dissent in the Arkansas birth certificate case, interpreting Obergefell (marriage equality) rights narrowly.

• Mark: Finds this “deeply disturbing,” viewing Gorsuch as unsympathetic to established LGBTQ rights and skeptical of applying Obergefell broadly.

  “Justice Gorsuch’s dissent in the birth certificate case… suggests to me not only that he is hesitant to apply Obergefell any further, but that he doesn’t really want to apply it at all.” — Mark Joseph Stern [08:16]

3. The "Center" of the Court & Institutional Concerns

[09:27]–[12:32]

• With a solidifying right wing (Thomas, Alito, Gorsuch), the “center” is now Roberts/Kennedy—not true centrists, but relocated by a rightward shift overall.

• Pam: Says Roberts is “first and foremost an institutionalist,” protective of the Court’s legitimacy, willing to uphold precedent (e.g., Obergefell’s application to birth certificates) to safeguard the institution.

  “John Roberts is first and foremost an institutionalist, and he is going to protect institutional prerogatives, even if it means fighting for a case that he didn’t even agree with in the first instance.” — Pam Karlan [10:53]

4. Race and the Justices: Roberts and Kennedy

[12:32]–[17:12]

• Mark: Kennedy’s trajectory in racial justice is evolving, highlighted by his opinions in Fisher (affirmative action) and Pena Rodriguez (racist juror) cases, indicating newfound “religion” on race.

• Pam: Cautions that Kennedy’s racial justice is often triggered by “outrageous” fact patterns—the outrage docket—but may not extend to subtler cases.

• Dahlia: The Supreme Court’s role is not mere error correction but to set standards.

  “If you confront justices like Justice Kennedy with something that’s really outrageous, they will find a way to make it clear that the Constitution doesn’t allow that. Whether subtler versions… will have the same effect… [is] another question entirely.” — Pam Karlan [15:45]

5. The Kennedy Retirement Rumors

[17:47]–[21:35]

• National anxiety over Kennedy's possible retirement, recognizing his outsize role as the swing justice ("the czar").

• Mark: Suggests right-leaning actors may have fueled rumors to nudge a vacancy for Trump to fill; ponders the horror for progressives of a Trump appointee replacing Kennedy.

  “Kennedy is the czar in some very important respects. He decides constitutional law for the most part. But that has been true ever since Justice O’Connor stepped down.” — Mark Joseph Stern [18:33]

• Pam: Observes that with the elimination of the filibuster, there’s little to stop Trump’s nominees, emphasizing how much “elections matter.”

6. Major Cases: The Travel Ban Injunction

[21:56]–[30:28]

• Mark: Describes the compromise Supreme Court ruling modifying the travel ban’s block—now only those with a "bona fide" US connection are exempt. Both sides claimed partial victory, but millions remain subject to the ban.

  “It’s sort of an optical illusion. It depends on where you stand.” — Mark Joseph Stern [21:56]

• Pam: Warns of border chaos as agencies determine what counts as "bona fide." Notes the possibility the case could become moot by fall if the time components expire.

• Dahlia: Emphasizes the decision is on a preliminary injunction, not merits.

Thomas, Gorsuch, and Alito’s Position

[26:13]–[27:52]

• Mark: Calls Thomas’s concurrence “a Scalian maneuver,” reading unwarranted optimism for the Trump administration into an otherwise ambiguous order.
• Dahlia & Pam: Point out the Court sidestepped the substantive irrationality of the travel ban, raising questions about the connection (or lack thereof) between nationality and danger.

7. Religious Liberty vs. Civil Rights: The Coming Collision

[32:21]–[43:35]

• Dahlia: Foresees future battle lines over the tension between religious liberty claims and anti-discrimination law, pointing to Masterpiece Cake (the Colorado cake-baker case) and the Trinity Lutheran playground case.

Masterpiece Cakeshop (Next Term)

[34:13]–[37:04]

• Pam: Frames it as a direct collision between anti-discrimination statutes and religious freedom claims—compares to past civil rights disputes.
• Mark: Is “cautiously optimistic” that Kennedy might side with civil rights, given his prior reluctance to support expansive religious exceptions in some cases, but notes his mixed record.

Trinity Lutheran

[37:04]–[46:38]

• Pam & Mark: Express uncertainty over the narrowness of the decision (state must include church in playground safety program), given the perplexing, limiting footnote.

• Mark: Highlights Sotomayor’s “amazing,” originalist dissent, warning the case “imperiled” longstanding church-state separation.

• Pam: Notes the legal difficulty of drawing lines between government benefits for secular and religious purposes.

  “It is especially astonishing that this court said… refusing to subsidize Trinity Lutheran somehow violates their right to the free exercise of religion. That, to me and to Justice Sotomayor is a very bizarre claim.” — Mark Joseph Stern [41:50]

8. Previewing Next Term and Final Thoughts

[46:38]–[53:01]

• Major cases queued: the fate of the travel ban, partisan gerrymandering, and religious freedom disputes.

• Pam: Raises the issue of the Solicitor General's credibility in a chaotic, embattled administration; wonders if the Court will remain as deferential as in the past.

• Mark: Notes unpredictable splits in recent gerrymander cases, making predictions difficult regarding Kennedy’s votes on partisan gerrymandering.

• Dahlia: Observes Roberts's quiet triumph: the Court is at the center of national issues yet largely absent from the media spotlight.

  “It is quite astounding that the Supreme Court, effective about this minute, will all but disappear from the national discourse until October… he’s done a really deft job of putting the court in the middle of everything and yet taking it off the front page.” — Dahlia Lithwick [51:57]

Notable Quotes & Memorable Moments

• “His votes thus far have been just catastrophic to what I call the progressive constitutional project.” — Mark Joseph Stern [04:08]
• “I don’t think the Chief Justice is moving to the left. I think… the new center is just further to the right.” — Dahlia Lithwick [12:32]
• “Kennedy is the czar… He decides constitutional law for the most part.” — Mark Joseph Stern [18:33]
• “Elections matter. And the real question… is whether there will be another vacancy before the American people get rid of Donald Trump.” — Pam Karlan [20:25]
• “It’s sort of an optical illusion. It depends on where you stand.” — Mark Joseph Stern [21:56] (about travel ban compromise)
• “This is a pretty narrow opinion… on a program that no longer exists. It’s the flip side… of something we were talking about earlier, like Fisher.” — Pam Karlan [38:19]
• “If you give a mouse a cookie…” — Pam Karlan [44:48] (referencing the logic of incremental church-state entanglement)
• “We have a system of church-state separation… Why would we change that?” — Mark Joseph Stern [45:09]
• “The Supreme Court… will all but disappear from the national discourse until October.” — Dahlia Lithwick [51:57]

Timestamps for Important Segments

• 02:52 — State of the Court since last term, public legitimacy discussion
• 04:08 — Mark on Gorsuch's conservative votes
• 05:43 — Gorsuch and Section 1983 jurisprudence
• 08:16 — Obergefell and the Arkansas birth certificate dissent
• 09:27 — Formation of Court’s ideological center
• 10:53 — John Roberts as institutionalist
• 13:18 — Kennedy’s evolution on race cases
• 17:47 — Kennedy retirement rumors and implications
• 21:56 — Travel ban ruling: who “won”
• 24:22 — Implementation chaos: bona fide relationships
• 26:13 — Thomas, Gorsuch, and Alito's separate opinion on travel ban
• 32:21 — Religious liberty vs. civil rights “collision” preview
• 34:13 — Masterpiece Cakeshop case as flashpoint
• 37:04 — Trinity Lutheran decision and its limits
• 46:38 — What to watch for next term: travel ban, gerrymanders, religious cases
• 51:57 — Dahlia: Court’s role at the center but out of sight

Conclusion

The episode offers a brisk, sophisticated, and accessible debrief on a Supreme Court term that was quieter in the headlines, but pivotal in shaping the judiciary’s future. The panel unpacks the ideological solidification of the right, Roberts’s institutional craftsmanship, the evolving roles of Kennedy and Gorsuch, and the tectonic cases awaiting the next term—travel ban, gerrymandering, and the civil rights/religious liberty clash—while reminding listeners how the Court’s decisions continue to reverberate in American life, even when few are watching.