Episode Overview

Episode Title: Get Ready for the Most Significant Supreme Court Term in a Decade
Podcast: Amicus With Dahlia Lithwick | Law, justice, and the courts
Release Date: October 5, 2019
Host: Dahlia Lithwick
Guests: Erwin Chemerinsky (Dean, UC Berkeley School of Law), Nancy Northup (President & CEO, Center for Reproductive Rights)

This "curtain raiser" episode previews the Supreme Court's 2019 term—described as the most consequential term in a decade—with a focus on high-stakes cases involving LGBTQ rights, the Second Amendment, immigration (DACA), the separation of church and state, and abortion rights. Dahlia Lithwick is joined by legal expert Erwin Chemerinsky to survey the major themes and cases, followed by a deep dive into the challenge to Louisiana’s abortion law with litigator Nancy Northup.

Main Themes & Purpose

• Supreme Court’s Pivotal Docket: The 2019 term features major cases on LGBTQ employment rights, abortion access, DACA, gun control, and church-state separation—issues with massive real-world consequences, especially as many will be decided amid a heated presidential election year.
• Judicial Strategy and the Court’s Image: The hosts discuss the phenomenon of the Court trying to "lay low" after the Kavanaugh confirmation and how that has led to a backlog of contentious cases now set to be decided in a politically charged climate.
• The Stakes for Rights and Precedent: The conversation emphasizes how the Court's resolution of these cases could fundamentally reshape the legal landscape for millions of Americans.

Key Discussion Points and Insights

1. The Supreme Court’s Docket Strategy

• Delayed Blockbusters: Chemerinsky explains how the Supreme Court, after the contentious Kavanaugh confirmation, avoided taking up the most controversial cases the prior term, only to add them to the 2019 docket, making it inevitable the Court would face these divisive issues just before a major election (03:00–05:02).
  • “I don't think it was an accident. I think after the bruising Kavanaugh confirmation fight, the justices were trying to keep a lower profile last term...But now they're before the court and they've decided in the midst of the 2020 presidential election season.” —Erwin Chemerinsky (03:31)
• Election-Year Tensions: Major decisions on guns, abortion, LGBTQ rights, and executive power will land in May/June 2020, making the Court central in political debates (04:34–05:33).

2. Ideological Dynamics & Predicting the Justices

• Last Term Wasn’t Predictive: Despite some surprising alliances and unanimity last term, Chemerinsky warns against over-interpreting—those were easier cases without ideological landmines (06:27).
• Roberts, Kavanaugh, Gorsuch: Analysis of whether Roberts might be a moderating influence; uncertainty about Kavanaugh and Gorsuch’s votes on upcoming divisive cases.

3. LGBTQ Employment Rights — Title VII (07:18–17:24)

• Case Preview: Three related cases: Zarda, Bostock (sexual orientation discrimination), and Amy Stephens (gender identity discrimination) ask whether Title VII prohibits discrimination against LGBTQ employees.
• Textualism vs. Legislative Intent:
  • Plaintiffs use textualism (“because of sex” includes sexual orientation/gender identity).
  • Trump administration and defendants rely on original intent (Congress did not mean to protect LGBTQ status).
  • “You do see here the more liberal position, trying to use the conservative methodology with regard to statutory interpretation.” —Chemerinsky (10:48)
• Potential Impact: A ruling against plaintiffs could strip millions of workers of protections in most states (14:29).
• Hope and Skepticism: Chemerinsky expresses hope younger justices may see the stakes differently but doubts Roberts will side with LGBTQ plaintiffs (16:12–17:24).
  • “This is a place where I don't hold much hope for John Roberts. One only has to go back and read Roberts’ dissent in Obergefell v. Hodges...it was such an angry, vituperative dissent.” —Chemerinsky (16:50)

4. Second Amendment Rights (17:24–19:13)

• “There is a split among the lower courts on so many issues with regard to the Second Amendment. Does it protect having guns outside the home? What level of scrutiny?” —Chemerinsky (18:20)
  • First gun rights case in nearly a decade (New York City gun regulation), but the law may be mooted by legislative changes. The Court faces pressure to “go big” on clarifying gun rights.

5. DACA and Executive Power (20:47–24:34)

• DACA Overview: Trump administration ended Obama’s Deferred Action for Childhood Arrivals policy; challenge centers on whether the rescission violated the Administrative Procedure Act.
  • “President Trump announced that he was rescinding the DACA program. This was challenged. Three different federal district courts said that he violated the Administrative Procedure Act in doing so.” —Chemerinsky (21:09)
• Roberts as Bellwether: The case is likened to last term’s census decision, with Roberts as the possible swing vote, “defer to pretextual arguments he can see are pretexts” (23:17–23:51).

6. Church-State Separation — Espinoza v. Montana (24:34–27:22)

• “The issue before the Court is, is the government constitutionally required to give aid to religious institutions whenever it gives them to private secular institutions?” —Chemerinsky (25:27)
  • A tax credit for private (including religious) schools could upend longstanding limitations on state funding of religious activity. Vehicle for potentially broad ruling, but procedural oddity (Montana ended the program for all) complicates matters.

7. The Court in a Political Storm: Compromisers vs. Purists (27:22–30:44)

• Roberts’ Stewardship: Lithwick and Chemerinsky ponder if the Court’s desire to preserve institutional integrity will hold as it faces politically explosive questions—especially with Roberts expected to preside over an impeachment trial.
  • “Some of the cases don't lend themselves to compromise. They're either going to allow President Trump to rescind DACA or they're not... ” —Chemerinsky (29:54)

Deep Dive: June Medical Services and the Threat to Roe v. Wade

Guest: Nancy Northup, Center for Reproductive Rights (33:02–44:09)

1. The Louisiana Law & Whole Woman’s Health

• Law’s Requirement: Doctors must have hospital admitting privileges within 30 miles—identical to Texas law struck down in 2016 (Whole Woman’s Health v. Hellerstedt).
  • “Indeed, the lawyers for Louisiana...admitted that the law was identical, and they admitted that in court.” —Nancy Northup (33:26)
• Impact: In Louisiana, would reduce clinics to one, leaving many counties without providers (33:48).
  • “In Louisiana, we're down to just three clinics...that leaves more than 90% of the counties...without any abortion provider at all...There would just be one clinic open and just one doctor providing should this law go into effect.” —Northup (34:06)

2. The “Trap Law” Tactic

• Admitting Privileges as Pretext: Northup explains such requirements are not about women’s safety, but to shut down clinics. Hospitals don’t grant privileges to doctors who don’t admit patients, and abortion is a very safe procedure.
  • “Admitting privileges laws are just underhanded ways for a state like Louisiana to prevent women from having abortions...It would do nothing to advance women's health.” —Northup (35:33, 36:47)

3. The Fifth Circuit’s Controversial Ruling

• Fact Disputes and Legal Standards: The Fifth Circuit re-examined facts found by the trial court, upholding the law by arguing the doctors “didn’t try hard enough.” Northup calls out appellate overreach (38:16).
• Roberts’ February 2019 Stay: In a surprise, Roberts joined liberals to block the law while the appeal continues; signals attention to precedent, though his final vote is uncertain (39:08).

4. The Two-Track Assault on Roe

• “It's always seemed as though there were two tracks to go after Roe v. Wade. One was these trap laws...and then the other...is just to all out make abortion illegal...” —Lithwick (41:04)
• Precedent at the Crossroads: Northup stresses that Roe and subsequent precedents are being “chipped away” through burdensome regulations, and that integrity of the Supreme Court is at stake.
  • “Since 1973, the Supreme Court has continued to recognize the fundamental right of a woman pre viability to make the decision about the termination of pregnancy...it's a critical time in terms of the Supreme Court's integrity.” —Northup (42:36, 43:26)

Notable Quotes & Memorable Moments

• “In terms of just the numbers of people in this country who are being affected, these decisions are enormously important.” —Erwin Chemerinsky (00:06, 14:58)
• “We all know there are unintended consequences to the choices we make. I think the unintended consequence of their putting the cases over to October term 2019 is that these blockbuster decisions will come down...in the context of a presidential election campaign.” —Chemerinsky (05:02)
• “What we've got to remember as we approach all three of these cases is that the majority opinion in every Supreme Court decision in history advancing rights for gays and lesbians was written by Anthony Kennedy. He's obviously no longer on the court.” —Chemerinsky (15:26)
• “Admitting privileges laws are just underhanded ways for a state like Louisiana to prevent women from having abortions...they don't advance health and safety because...abortion is one of the safest medical procedures in the United States.” —Nancy Northup (35:33, 36:47)
• “We have been to the brink many times. The stakes here are extraordinarily high. But...it's a critical time in terms of the Supreme Court's integrity. And we're going to count on them to uphold the rule of law...” —Northup (43:05)

Timestamps for Key Segments

| Time | Segment | |----------|------------------------------------------------------------------------------------------------| | 00:06 | The stakes: Millions affected by pending Supreme Court cases | | 03:00 | Supreme Court’s term-delaying strategy post-Kavanaugh | | 07:18 | Preview of Title VII LGBTQ cases (Zarda, Bostock, Amy Stevens) | | 13:47 | Religious liberty issues lurking behind employment cases | | 14:29 | National implications — 20+ states lack LGBTQ protections | | 17:24 | Second Amendment and urge for the Court to clarify scope | | 20:47 | DACA rescission and its legal challenge | | 23:17 | Tying DACA to the census case and the issue of pretext | | 24:34 | Espinoza v. Montana: School funding and church-state separation | | 27:22 | Stewartship, the Court's public image, compromise versus ideology (Roberts’ role) | | 33:02 | Deep dive: Louisiana admitting privileges law; Interview with Nancy Northup | | 35:33 | The reality behind “admitting privileges” and clinic closures | | 38:16 | The Fifth Circuit’s factual re-evaluation | | 39:08 | Supreme Court’s February 2019 intervention and Roberts’ pivotal role | | 41:04 | “Two-track” strategy against Roe: trap laws vs. total bans | | 42:06 | The stakes for Roe, stare decisis, and Court integrity |

Conclusion

This episode sets the stage for a monumental Supreme Court term, where the outcomes could reshape fundamental rights for millions across critical issues: LGBTQ protections, the right to abortion, gun regulation, immigration, and religious liberty. The conversations balance legal analysis with a real-world sense of urgency, noting not just what’s at stake for litigants, but for the Court’s long-term legitimacy.

The major takeaway: This Supreme Court term won’t be just another judicial session. It’s a test of law, precedent, politics, and the Court’s own role in American life.