Podcast Summary: Amicus With Dahlia Lithwick | Law, Justice, and the Courts
Episode: From the Snapchat Cheerleader to Katie Porter’s Whiteboard
Date: June 5, 2021
Host: Dahlia Lithwick, Slate Podcasts
Guests: Mark Joseph Stern (Slate Supreme Court Reporter), Rep. Katie Porter (CA-45)

Episode Overview

This episode of Amicus examines the major Supreme Court cases pending at the end of the 2021 term—including matters of health care, religious liberty, voting rights, and student free speech—before turning to a conversation with Rep. Katie Porter on ethics, corruption, and reform within U.S. government institutions. Host Dahlia Lithwick, with legal journalist Mark Joseph Stern, demystifies both “blockbuster” and overlooked cases that shape American law, while Rep. Porter provides an insider’s view on fixing the gaps that allow for abuse of power and dark money in politics.

Key Discussion Points and Insights

1. The Illusion of “Blockbuster” Cases and Supreme Court End-of-Term Dynamics

[04:38 – 08:54]

• Lithwick and Stern critique the media’s focus on a few “big” cases, pointing out that seemingly minor or technical cases (like Epic Systems or Iqbal) often have more sweeping effects than anticipated.
  • Quote:
    “Every case is a blockbuster to someone.” – Mark Joseph Stern [05:15]
• The process of Supreme Court deliberation is slow: after oral arguments, justices circulate draft opinions and responses, leading to delays and often splintered decisions.

2. The Affordable Care Act (ACA) Survival Case

[08:54 – 15:44]

• The Supreme Court faces its third challenge to the ACA, focusing on whether zeroing out the individual mandate renders the whole law unconstitutional.
• Stern notes oral arguments suggested "there are not five votes to destroy the Affordable Care Act," with Justices Roberts and Kavanaugh supporting severability, meaning the ACA would likely survive even if the mandate falls.
  • Quote:
    “Good news for people who don’t like mass death in America.” – Mark Joseph Stern [12:23]

3. Fulton v. Philadelphia: Religious Liberty vs. Non-Discrimination

[16:44 – 22:35]

• At issue: can Philadelphia refuse to contract with a Catholic foster agency that won’t screen same-sex couples?
• Stern is critical of the current Court’s shift toward privileging religious exemptions, pointing out the broad consequences if religious entities can routinely refuse compliance with neutral, generally applicable laws.
  • Quote:
    “If the court rules for the agency… it will open a huge loophole in non-discrimination law.” – Mark Joseph Stern [21:14]
• Discussion of how the Court may sidestep or reinterpret prior precedent (Employment Division v. Smith).

4. Brnovich v. DNC and the Future of Voting Rights

[25:01 – 33:06]

• Arizona’s laws on ballot collection and ballot counting could significantly narrow the reach of the Voting Rights Act (VRA), especially the critical Section 2 (disparate impact).
• Stern warns that with preclearance gone, the VRA’s “results test” is all that’s left for voting rights lawyers, and fears the Court will invalidate key protections.
  • Quote:
    “It’s all that you have left. It’s the only tool in your arsenal.” – Mark Joseph Stern [31:15]
• Gorsuch’s questioning is highlighted as emblematic of the Court’s skepticism toward pro-voting arguments.
  • Memorable Exchange:
    Gorsuch: “Does Arizona have to wait for fraud to occur in Arizona using a practice?” [29:10]

5. Student Free Speech in the Age of Social Media: The Snapchat Cheerleader Case

[33:06 – 39:19]

• The case (Mahanoy Area School District v. B.L.) deals with a student punished for a Snapchat post off-campus.
• Lithwick and Stern trace the decline of Tinker-era student free speech and note the challenge of adapting old doctrine to new technology.
  • Quote (Breyer, quoted by Stern):
    “I’m frightened to death of writing a standard.” [37:31]
• There’s concern the Court will leave doctrine “in more of a mess than it was in when the Supreme Court took it up.” – Stern [38:48]

6. Additional Critical Cases

[39:45 – 42:53]

• Americans for Prosperity Foundation v. Bonta: Concerns donor disclosure requirements for nonprofits, with implications for campaign finance transparency.
• Stern predicts the Court may further entrench secret “dark money” in politics, overturning long-standing norms in First Amendment jurisprudence about public criticism and donor disclosure.
  • Quote:
    “They are very concerned about keeping our precious conservative snowflakes from melting under the withering, harsh light of transparency.” – Mark Joseph Stern [41:51]

Rep. Katie Porter: Government Ethics, Oversight, and Reform

[43:51 – 75:27]

The Gap Between Norms and Laws

[46:56 – 54:35]

• Porter stresses that many Trump-era abuses exploited the fact that conduct "was not against the technical law, but… violated longstanding norms."
• The result: a call to codify more norms into laws so that future violations can be addressed evenly and systematically.
  • Quote:
    “We need to put our country—not Democrats or Republicans—on very clear, established ground that X, Y, and Z are not just wrong, but... illegal.” – Rep. Katie Porter [52:22]

The Looming Danger of “Snapping Back”

[54:35 – 57:21]

• Porter warns against complacency just because the current White House is norm-abiding.
• She calls for modernizing constitutional provisions like the Emoluments Clause to clarify and enforce ethical boundaries.
  • Quote:
    “Am I worried about President Biden violating the emoluments clause? No… Do I think it needs to be fleshed out and updated?... Yes.” – Rep. Katie Porter [56:23]

Rebuilding Congressional Oversight Power

[58:06 – 64:34]

• The Trump era exposed the limits of congressional subpoena power and the dangers of “pretend oversight” (commissions without power or staff, IG positions left vacant, etc.)
  • Quote:
    “That’s not oversight, that’s pretend oversight.” – Rep. Katie Porter [63:09]
• Porter calls for more immediate and meaningful oversight, including building accountability mechanisms into legislation itself.

Ethics Legislation and Modernization Efforts

[64:34 – 70:44]

• Porter details legislative efforts: modernizing ethics offices, enforcing disclosures (Stock Act 2.0), strengthening the Office of Government Ethics, restricting the use of “acting” officials, and HR1’s transparency provisions.
• She cites the case of Postmaster General Louis DeJoy’s ambiguous recusal as an example of why real transparency is still lacking.
• On HR1: “The class of 2018… was elected not to revert government to pre-Trump, but to make government better. Because Trump has caused us to recognize just how important that is.” [70:44]

Why Bipartisan Reform Hasn’t Materialized

[70:44 – 75:27]

• Despite expectations, anti-corruption reform has not become bipartisan. Porter theorizes this is due to ongoing partisan entrenchment, Trump’s continuing influence, and a lack of will to “give up” the ability to attack political opponents for ethics failures.
  • Quote:
    “Those actions are wrong. They are a harm not to Republicans, not to Democrats. They are harm to our democracy.” – Rep. Katie Porter [74:02]
• Emphasizes that reform is needed to rebuild trust, especially with independent voters.

Notable Quotes & Memorable Moments (with Timestamps)

• “Every case is a blockbuster to someone.” – Mark Joseph Stern [05:15]
• “Good news for people who don’t like mass death in America.” – Mark Joseph Stern [12:23]
• “If the court rules for the agency… it will open a huge loophole in non-discrimination law.” – Mark Joseph Stern [21:14]
• “It’s all that you have left. It’s the only tool in your arsenal.” – Mark Joseph Stern [31:15] (on the Voting Rights Act)
• “I’m frightened to death of writing a standard.” – Justice Stephen Breyer (quoted by Stern) [37:31]
• “They are very concerned about keeping our precious conservative snowflakes from melting under the withering, harsh light of transparency.” – Mark Joseph Stern [41:51]
• “We need to put our country—not Democrats or Republicans—on very clear, established ground that X, Y, and Z are not just wrong, but... illegal.” – Rep. Katie Porter [52:22]
• “That’s not oversight, that’s pretend oversight.” – Rep. Katie Porter [63:09]
• "Those actions are wrong. They are a harm not to Republicans, not to Democrats. They are harm to our democracy.” – Rep. Katie Porter [74:02]

Timestamps for Important Segments

• Supreme Court case selection process critique: [04:38–08:54]
• Affordable Care Act case breakdown: [08:54–15:44]
• Fulton & religious liberty debate: [16:44–22:35]
• Brnovich, voting rights, and Section 2: [25:01–33:06]
• Snapchat cheerleader/student speech: [33:06–39:19]
• Dark money/disclosure, Americans for Prosperity: [39:45–42:53]
• Katie Porter on norms, ethics, and reform: [46:56–75:27]

Overall Tone & Final Thoughts

The episode is marked by urgency, frankness, and occasionally dark humor, as Lithwick, Stern, and Porter reflect openly on the consequences of Supreme Court and congressional actions (or inactions). It’s a candid, unsparing assessment of the present and future of American legal and political accountability, with warnings against both apathy and complacency.

This summary distills the core discussions and takeaways of the episode, providing enough context and detail for listeners—new and old—to grasp the stakes, arguments, and personalities involved in contemporary legal and ethical debates on the Supreme Court and in Congress.