Amicus With Dahlia Lithwick

Episode: Legal Blinkers, Moral Hazards

Release Date: January 31, 2026
Guest: Joseph Margulies (Professor of Government at Cornell; civil rights attorney, writer)

Episode Overview

In this episode, host Dahlia Lithwick and guest Joseph Margulies confront the dangers of relying on legal frameworks alone—without moral clarity or public conscience—especially in the context of alarming government overreach, abuses of power, and the blurring of legality and morality post-9/11. Drawing on Margulies’ legal career and recent writings, they examine how moral voices can, and must, resist legalistic justifications for cruelty, authoritarianism, and the steady normalization of grave harm—ranging from torture to family separation and state violence. The conversation criticizes the dominance of “law speak,” explores the legacy of the war on terror, and calls for rekindling collective, moral outrage.

Key Discussion Points & Insights

1. The Limits of Legal Reasoning and the Silencing of Moral Voices

• Margulies opens with a powerful critique: Americans have allowed "the dominance of law speak gradually silence our moral voice" ([01:13]).
• The law, originally meant to protect rights, is now sometimes wielded to erase them. Legal memos and executive orders are used to justify the unjustifiable—whether torture, extrajudicial killings, or family separations ([02:12]).
• Notable quote:

  “The question that we all need to ask now ought not be framed as, ‘Is that lawful?’ It ought to be framed as, ‘Is that right?’” – Joseph Margulies ([01:48])

2. Distinguishing Law from Morality

• Lithwick challenges Margulies: Morality is subjective; law is, in theory, objective. Historically, morality has justified wrongs (like segregation laws) ([10:06]).
• Margulies contends that legal systems, while presented as neutral and objective, are often just as contingent and manipulable as moral arguments. Legal opinions can be manufactured for any position—as exemplified by the Bush-era “torture memos” ([11:34], [13:00]).
• Notable quote:

  “Those lawyers or law students who think ‘I went into the law because it’s certain, it’s definite’—well, get over yourself.” – Joseph Margulies ([14:53])

3. The Essential Role of Popular Moral Movements

• Margulies stresses that legal victories require a “moral claim” from the populace; courts and legislatures only respond when driven by mass outrage and clarity ([16:17]).
• Example: Protests in Minneapolis and elsewhere arise not from legal argument, but "because there are tens of thousands of people, ordinary citizens...who wake up and are registering this in their moral voice" ([16:57]).
• Notable quote:

  “Whatever success we get in the law is only happening because of that [popular, moral voice].” – Joseph Margulies ([17:51])

4. How Power Rebrands Immorality as Legality

• The Trump administration (and previous governments) craft memos/executive orders to label dissenters as "domestic terrorists," recasting moral opposition as criminal or unlawful ([24:31], [25:40]).
• Margulies: Simply producing legal rationalizations is effective when there’s no energized moral opposition ([26:14]).
• Laws and legal frameworks can be twisted unless there is a countervailing moral claim in the public.

5. The Post-9/11 Legacy: ‘911 Forever’ and Permanent ‘States of Exception’

• Margulies draws a direct line from post-9/11 legal changes—torture, surveillance, “enhanced interrogation,” expanded border policing—to today’s normalizations of cruelty ([28:12]).
• Key move: Reframing problems as ‘war’ rather than ‘crime’ allows governments to justify draconian acts ([29:57]).
• Demonization of “the other” and the obsession with border security have turned everywhere—in policy and metaphor—into a kind of front line or battle zone ([33:12], [35:03]).
• Notable quote:

  “None of the real horrors...could have been possible without a thorough embrace of demonization, without a willingness to cast some people outside the sphere of human regard.” – Joseph Margulies ([29:57])

6. The Power (and Danger) of Language

• Language shapes both law and public morality: calling ICE actions a “war,” speaking of “borders everywhere,” or using the term “terrorist” for dissenters gradually dehumanizes and erases moral complexity ([39:46], [40:52]).
• Supreme Court’s rare, explicit use of “torture” in rulings is significant, even when legal remedies are denied—it affirms moral truths ([41:40], [44:10]).
• Notable quote:

  “What you did to my clients was a moral obscenity. You tortured my client. And that matters.” – Joseph Margulies ([45:18])

7. Resisting Moral Numbness and Weariness

• Lithwick and Margulies reflect on the “flood the zone” strategy (attributed to Steve Bannon) to overwhelm public conscience through constant outrage ([47:51]).
• Margulies: Despite exhaustion, people’s collective voice is awakening—protests, declining approval of cruel policies, and outrage are rising. Change happens only through collective recognition and action ([47:51], [50:26]).
• Notable quote:

  “The law is never enough by itself. If you do not have the moral claim behind it...the law is an empty vow.” – Joseph Margulies ([51:05])

Memorable Quotes with Timestamps

• [01:13] Joseph Margulies: “We let the dominance of law speak gradually silence our moral voice. Stop. Look out. Damn. I'm just angry…I feel like we're performing CPR on what may already be a corpse called the Constitution.”
• [01:48] Joseph Margulies: “The question that we all need to ask now ought not be framed as is that lawful? It ought to be framed as is that right?”
• [11:34] Dahlia Lithwick: “[Morality is] not just subjective and inchoate, but morality was used to justify segregation…[the] story we tell about the framers [is] creating a church of the law...agreeing on certain principles that are legal and not moral.”
• [14:53] Joseph Margulies: “Lawyers who think ‘I went into the law because it’s certain, it’s definite. Well, get over yourself.’”
• [16:57] Joseph Margulies: “[Protesters] are registering this in their moral voice. I will not allow this to happen. This is wrong and I'm going to brave 20 below weather…I hope they take the moment to recognize how important what they're doing is.”
• [24:31] Dahlia Lithwick: "[The Trump administration says] whether it's secret or whether it's public, we can say all sorts of batshit stuff and then we can say, no, no, this is rooted in the law. …That's the slippage."
• [29:57] Joseph Margulies: “None of the real horrors that took place post 9/11 or that are taking place now could have been possible without a thorough embrace of demonization…We can do what we want with that person because they are not us.”
• [40:54] Joseph Margulies: "In theater. It’s a war zone. ... Language is extremely important."
• [45:18] Joseph Margulies: “What you did to my clients was a moral obscenity. You tortured my client. And that matters.”
• [51:05] Joseph Margulies: “The law is never enough by itself...the law is an empty vow.”

Timestamps for Key Segments

• [01:13] – Margulies opens with the silencing of America's moral voice by law speak
• [06:13] – Lithwick introduces Margulies’ background & Boston Review piece
• [06:52] – Margulies on impunity and the need for moral outrage
• [10:06] – Debate: is morality too subjective?
• [13:00] – The futility of legal debates as the sole arbiter
• [16:17] – The interplay between legal action and moral, popular activism
• [24:31] – The slippage between legal memos and radical policy
• [28:12] – Lessons from the post-9/11 era and permanent "war"
• [35:03] – 'Borders everywhere' and the logic of contamination
• [39:46] – The importance of language in shaping legality and morality
• [47:51] – How to maintain moral clarity amid moral fatigue

Final Takeaways

• Law alone is insufficient: In the absence of public, moral outcry—or when the populace is silenced or numbed by endless legalese—legal protections are easily subverted.
• History’s lesson: Real change is driven by collective moral action, not just courtroom arguments.
• Moral vigilance needed: Margulies and Lithwick urge ongoing, vocal moral opposition to injustice—legal or otherwise—lest normalization take root.
• Language matters: Words—legal, political, or everyday—shape both what is seen as possible, and what becomes permissible.

Listen For…

• The challenge to "legal blinkers"—the false comfort that legality always equals justice
• A rigorous call for reclaiming plain moral language: “This is an abomination,” “It is unacceptable.”
• Ongoing relevance of post-9/11 legal changes to today’s state violence and family separation
• The hope and necessity of popular movements—protests, outrage, and collective conscience—as catalysts for real change