Podcast Summary: Amicus With Dahlia Lithwick – “Buckle Up, John Roberts”

Date: January 4, 2020
Host: Dahlia Lithwick
Guest: Mark Joseph Stern (Slate legal correspondent, author of American Justice 2019: The Roberts Court Arrives)

Episode Overview

This episode centers on Chief Justice John Roberts as the figure at the center of America’s constitutional and political drama in early 2020. Dahlia Lithwick and Mark Joseph Stern explore Roberts’ background, his style of conservatism, his institutionalist instincts, and the implications for a Supreme Court term packed with historic cases—including impeachment, reproductive rights, executive power, and more. The discussion analyzes Roberts’ potential role and calculations as the Court and the country face escalating political and legal crises.

Key Discussion Points & Insights

1. Who Is John Roberts? The Chief’s Biography and Judicial Philosophy

• Roberts: a smart, conservative "apparatchik" from Indiana with a Midwestern charm ([04:21]).
• Rose through the Republican legal ranks (Rehnquist clerk, Reagan DOJ, corporate law, D.C. Circuit, Bush Supreme Court pick).
• Seen initially as a “bushy” (establishment conservative), not an uncompromising hardliner like Thomas or Alito.
• Stern: “He does not want to beclown his court in the process, does not want his court to lose its legitimacy or prestige.” ([07:54])

Quote:
MARK STERN [04:21] – “He was a very, very smart attorney...seen at the time as a kind of Bushy conservative, but not rock-ribbed hardliner...trusted to continue to steer the court...in a gently but firmly rightward direction.”

2. Institutionalism vs. Hardline Conservatism

• Dichotomy between Roberts (institutionalist) and others (partisan/ideological conservatives).
• Roberts strives to preserve the legitimacy of the Court, crossing party lines (e.g., ACA cases, census) when necessary for the institution.
• Key distinction: Roberts is chiefly guided by his role as Chief—his votes and actions as leader are more moderate compared to how he might act as associate justice ([09:51]).

Quote:
MARK STERN [09:51] – “I think John Roberts as an Associate Justice...votes very differently than John Roberts as Chief Justice...he does not want to be the guy who destroys the Court.”

3. The Big Game Board – Impeachment, Trump Cases, Major Rulings

• Roberts faces a constellation of historic challenges: a “monster” Supreme Court term, impeachment, and Trump-related legal battles ([11:21]).
• Tension between ideological preference (conservative outcomes) and the need to avoid the appearance of partisan rubber-stamping.
• In the census case, stance was driven by the administration’s incompetence and mendacity, not legal principle ([13:05]).

4. Roberts vs. Trump and the “Civility Fault Line”

• Roberts is no Trump loyalist (“Trump is everything that the chief hates in a politician or in any kind of public figure”; [17:28]).
• Contrasts between Roberts and other justices (Thomas, Kavanaugh, Gorsuch) who are more aligned or complicit with the Trump presidency’s style and aims ([19:07]).

Quote:
MARK STERN [17:28] – “Roberts doesn’t like Donald Trump… The chief is a big civility guy, and Trump is not.”

• Thomas’s dissent in the census case is called out for attacking lower court judges in “profoundly damaging” ways ([20:10]).

5. Roberts’ “State of the Judiciary” & The Messaging Problem

• Roberts’ year-end report focused on court neutrality, civics education, and the need to maintain public trust—a response to a polarized, misinformation-fueled environment ([21:53]).
• Lithwick and Stern debate whether this “institutionalism” is code for preserving the court’s power while minimizing political risk.

Quote:
DAHLIA LITHWICK [24:25] – “John Roberts responding to a messaging problem...the courts need to do a better job of messaging that they are neutral.”

6. Role in Impeachment: Potted Plant or Power Broker?

• Roberts likely wants to play a minimal, Rehnquist-style role during the Senate impeachment trial, but could be forced to make decisions if the Senate is closely divided ([33:30]).
• While he can be overruled, his judgment still holds symbolic weight for certain Senators (Collins, Romney).
• Roberts faces the unenviable task of presiding over a “hyper-partisan” proceeding, striving for neutrality while possibly refereeing highly contentious procedural disputes.

7. Roberts and Government Paralysis

• He prefers the judiciary’s steady incrementalism amid legislative dysfunction but can be evasive when other branches fail to govern ([38:45]).
• Sometimes points to Congress’s ability to “fix” issues struck down by the Court, knowing Congress is gridlocked.

8. Blockbuster Supreme Court Term

• The Court’s 2019-2020 docket includes:
  • Trump financial records and tax return cases ([43:38])
  • Title VII cases: LGBTQ civil rights
  • DACA (“Dreamers”) and deportation
  • Major abortion rights challenge (June Medical) including questions about clinic standing
  • Religious funding case out of Montana
  • Second Amendment/gun rights case
  • Environmental and racial discrimination cases
  • Juvenile justice (potential reversal of Kennedy-era protections)

Quote:
MARK STERN [46:27] – “Everything that Americans care about… liberty, all of that is up for grabs this term at the Supreme Court.”

9. What Can the Public Do? “Be Larger Than the Bear”

• Borrowing the “Yellowstone camping” metaphor, they urge public vigilance and engagement: “be visible, show the court you’re watching” ([41:04]).
• The entrenched influence of judicial appointments—especially the Trump-era district and appellate courts—will be felt for generations.

Quote:
MARK STERN [47:16] – “Be the camper at Yellowstone who makes herself bigger than the bear. The Republicans…have confirmed so many wildly unqualified and extreme radical judicial nominees because they don’t think people are paying attention.”

Notable Quotes and Memorable Moments

• On Roberts’ distaste for Trump:
  “I think the Chief Justice would like for Trump to not be president. I’m sure Roberts would be very happy with a Mike Pence presidency, but Trump is sort of everything that the chief hates…” – Mark Stern [17:28]

• On the Court’s Messaging and Legitimacy:
  “John Roberts…wants the courts to keep doing what they’re doing. He just wants the story to be told differently.” – Dahlia Lithwick [27:59]

• On the stakes for 2020:
  “Everything that Americans care about, if they have any interest in justice or equality or liberty, all of that is up for grabs this term at the Supreme Court.” – Mark Stern [46:27]

• On public action:
  “Be the person who sees the bear and makes herself so big that the bear runs away…if they do it in silence, if they do it quietly…that’s how the bad guys win.” – Mark Stern [47:16]

Timestamps for Important Segments

| Timestamp | Segment | |--------------|--------------------------------------------------| | 03:50 | Introduction to John Roberts’ biography | | 09:51 | Roberts as Chief vs. Associate Justice | | 13:05 | The Census Case: Roberts’ Calculations | | 17:28 | Roberts’ relationship with Trump | | 19:07 | The “Civility Fault Line” among justices | | 21:53 | “State of the Judiciary” and court legitimacy | | 33:30 | Roberts’ expected role during Impeachment | | 38:45 | Roberts’ response to institutional paralysis | | 41:04 | “Be larger than the bear”—public vigilance | | 43:38 | Major cases facing the Supreme Court in 2020 | | 47:16 | Last word on judicial appointments and action |

Episode Tone and Style

The episode is candid, nuanced, and laced with dry humor and healthy skepticism. Dahila Lithwick is characteristically wry and incisive, while Mark Stern offers detailed legal analysis, unflinching about the dangers, but always contextually rich.

Summary Takeaway

The Supreme Court, with Chief Justice Roberts at its fulcrum, faces an epoch-defining term. Roberts’ conservatism is real, but his highest allegiance may be to the institutional stability and perceived legitimacy of the Court. Whether that will be enough to blunt the forces of political polarization, norm-breaking executive behavior, and the Trump administration’s postures remains to be seen. Above all, Lithwick and Stern argue, the public should be alert and present—watching the judiciary’s dramatic turn with vigilance and engagement.