Amicus With Dahlia Lithwick | Law, Justice, and the Courts
Episode: "Flowers, Crosses, Clauses and Oaths"
Date: June 22, 2019

Episode Overview

This episode explores the final days of the Supreme Court’s 2018 term, focusing on several consequential decisions and their implications for American law and constitutional interpretation. Host Dahlia Lithwick is joined by Slate’s Mark Joseph Stern to unpack the cases of Flowers v. Mississippi, Gundy v. United States, and American Legion v. American Humanist Association. The episode then pivots to a scholarly discussion about the Take Care Clause and the faithful execution of the presidency with law professors Andrew Kent and Jed Shugerman, dissecting their much-discussed Harvard Law Review article on Article II's historical meaning and its current relevance.

Key Discussion Points & Insights

1. Recent Supreme Court Decisions: Analysis and Significance

• Flowers v. Mississippi ([01:29]–[03:38])

  • Case concerned prosecutor's repeated exclusion of Black jurors in trials of Curtis Flowers, a Black man tried six times for murder.
  • The Supreme Court, in a 7-2 decision by Justice Kavanaugh, reversed Flowers’ conviction, finding clear prosecutorial racism.
  • Quote: "[T]he same one white prosecutor struck 41 of 42 prospective black jurors, clearly trying to build all white juries. [...] this was a case of prosecutorial racism." — Mark Joseph Stern [02:53]
  • Decision seen as reviving the 1986 Batson decision, giving it "teeth" and strengthening barriers against racial discrimination in jury selection ([03:38]).

• Gundy v. United States and the Nondelegation Doctrine ([04:33]–[07:28])

  • The case challenged congressional delegation of authority to the Attorney General regarding sex offender registries.
  • Main concern: Reviving nondelegation doctrine could endanger much of the administrative state built since the New Deal.
  • Justice Alito, siding with liberals, flagged the uniqueness of the case, but indicated he might vote to limit delegation if circumstances changed ([06:45]).
  • Quote: "Give me Kavanaugh's vote... and I'm willing to go whole hog with all my conservative pals and destroy the entire administrative state." — Mark Joseph Stern [07:22]

• American Legion v. American Humanist Association ("Maryland Cross" case) ([07:28]–[10:00])

  • Concerned legality of a large cross-shaped WWI memorial on public land.
  • The Court (7-2) allowed the cross to remain, citing its age and evolving meaning.
  • There was confusion and disagreement among the majority on what the new standard now is, with a general trend away from the "Lemon test."
  • Quote: "Not even the justices who purported to lay down the new rule actually know what the new rule is." — Mark Joseph Stern [09:36]

• Looking Ahead to Blockbuster Cases ([10:00]–[11:06])

  • Anticipation of major decisions on partisan gerrymandering and the addition of a citizenship question to the 2020 census.

2. Deep Dive: Supreme Court Decision-Making and Shifting Precedent

• Gamble v. United States and Dual Sovereignty ([13:38]–[24:03])

  • Terence Gamble was prosecuted by state and federal authorities for the same conduct.
  • The long-standing "dual sovereignty" doctrine allowed both prosecutions, not violating Double Jeopardy.
  • The majority invoked uncertainty in the historical evidence and deference to precedent, with dissenters (Ginsburg, Gorsuch) focusing on fairness ([17:09]–[19:56]).
  • Discussion also addressed public paranoia about implications for Trump associates’ legal exposure, noting state double jeopardy rules and prosecutorial strategy ([20:40]–[24:03]).
  • Quote: "When history is so thin that that should not be the primary determinant in a decision." — Andrew Kent [18:28]

• The ‘Faithful Execution’ Clauses: Constitutional Meaning and Presidential Power ([35:14]–[62:43])

  • Law professors Andrew Kent and Jed Shugerman discuss their article on the Take Care Clause and Oath Clause of Article II.
  • Historically, "faithful execution" imposed concrete duties and restraints, not expanded presidential power.
  • Oaths were significant in eras with sparse administrative oversight, serving as both a religious and legal check on officials ([37:35]).
    • Quote: "In an era that was much more religious than our own and took oaths extremely seriously, the oath was something that was turned to as a real powerful bind on a man's soul." — Andrew Kent [38:13]
  • The clauses are often (mis)used as justification for expansive executive authority or as “kitchen sink” arguments by administrations, despite their fiduciary, limiting origins ([44:04]–[46:38]).
    • Quote: "I think one of the big challenges of our paper... is you can either be an originalist or you can be in favor of super expansive presidential power. But it's very, very hard, if not impossible, I think, to be both." — Andrew Kent [46:33]
  • Their analysis identifies three duties embedded in "faithful execution":
    1. Not to exceed statutory or constitutional authority.
    2. To act in good faith, impartiality, and diligence.
    3. Not to profit personally or self-deal ([50:44]).
  • The paper notes that current events make the original understanding of these obligations especially salient, as President Trump’s actions often raise questions about personal versus public interest ([53:12]–[53:55]).
  • The authors discuss the potential for these historical meanings to influence contemporary debates about limits on presidential removal power, pardons, and the growth of the administrative state ([47:10], [57:53]).

3. Oaths, Originalism, and the Modern Court

• Thoughtful engagement on whether we should all be "originalists" in interpreting the Constitution ([57:53]–[62:43]).
  • Andrew Kent expresses an "ecumenical" approach; Jed Shugerman advocates for "modest originalism" that values both text/context and precedent.
  • Shugerman argues that the historical constraints of the Take Care clause should appeal to progressives as a curb on the current conservative judiciary.
    • Quote: "A sincere commitment to originalism is something that would limit the discretion of a new conservative majority." — Jed Shugerman [61:58]

Notable Quotes & Memorable Moments

• On Batson's renewal:
  “There can't just be endless pretext to the point that you have an awful, obviously racist prosecutor asserting obviously racist challenges, and everybody pretends like it's fine because it's Mississippi.” — Mark Joseph Stern [03:20]

• On administrative law and Gundy:
  “If this law had fallen and the non delegation doctrine had been revived, then I think a bunch of those agencies would get stripped of their power and a ton of other federal laws would fall with it.” — Mark Joseph Stern [06:32]

• On historical context for oaths:
  "There was a real question about how are we going to get, get the sheriff who's out there on his own in his jurisdiction without really Anyone effectively able to control him, how are we going to keep that person from abusing his office...?" — Andrew Kent [38:02]

• On the risks of broad presidential power:
  "You can either be an originalist or you can be in favor of super expansive presidential power. But it's very, very hard, if not impossible, I think, to be both." — Andrew Kent [46:33]

• On the idea of ‘faithful execution’:
  "We do have, based on the history that we found, think that there are sort of three elements... One is a duty not to act beyond the authority of one's office; a second is to act in sort of a good faith, impartial, honest...way; and then the third piece is a restraint on taking unauthorized profits or engaging in financial self dealing with the office." — Andrew Kent [50:44]

• A call for modest originalism:
  "When the framers used vague language, they understood what they were doing in the 1780s and in the 1860s to allow for the principles to be a legacy handed on to others." — Jed Shugerman [60:37]

Important Segment Timestamps

• Intro and Theme ([00:31])
• Flowers v. Mississippi discussion ([01:29])
• Batch of major decisions: Batson and nondelegation ([03:38]–[07:28])
• American Legion (Maryland cross), Lemon test ([07:28]–[10:00])
• Upcoming blockbusters: gerrymandering and census ([10:00]–[11:06])
• Gamble v. U.S.: dual sovereignty and Trump context ([13:38]–[24:03])
• Nondelegation and Gundy ([25:50]–[30:39])
• Justice Alito and court restraint ([30:58]–[33:15])
• Faithful Execution in Article 2: Historical dive ([35:14]–[47:10])
• Implications for modern presidency: duties, self-dealing ([49:55]–[53:55])
• Originalism: necessity or tool? ([57:53]–[62:43])

In Summary

This installment of Amicus underscores how the Supreme Court’s seemingly technical legal decisions have deep and far-reaching effects on American law and society—from the promise of a fair trial to the foundations of administrative government. The discussion around the “faithful execution” of the presidency highlights not only the historical constraints embedded within the Constitution but also their pressing relevance in today’s polarized and turbulent political climate. The episode concludes with a thoughtful reflection on originalism, arguing that, ultimately, historical wisdom and textual fidelity offer valuable—if not complete—guidance for modern constitutional interpretation.