← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Our All-Star SCOTUS End-of-Term Breakfast Table
01:02:19
Amicus’ brain trust of five top legal analysts are here to help you process what just happened at the Supreme Court.
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- [00:01]
Mark Joseph Sturm
This episode is brought to you by Avid Reader Press.
- [00:04]
Dahlia Lithwick
Legendary investor Ray Dalio's new book, How Countries Go the Big Cycle, explains the mechanics behind big debt crises. Larry Summer says Dalio's brilliant, iconoclastic approach is an invaluable resource. And Hank Paulson says it provides a solution to what is the biggest and.
- [00:21]
Mark Joseph Sturm
Most certain threat to our prosperity.
- [00:23]
Dahlia Lithwick
Read it to understand the greatest economic issue of our time. Available now wherever books are sold.
- [00:31]
Sherilyn Ifill
You know that one friend who somehow knows everything about money?
- [00:35]
Dahlia Lithwick
Yeah. Now imagine they live in your phone.
- [00:37]
Sherilyn Ifill
Say hey to Experian, your big financial friend.
- [00:41]
Dahlia Lithwick
It's the app that helps you check.
- [00:42]
Sherilyn Ifill
Your FICO score, find ways to save.
- [00:44]
Dahlia Lithwick
And basically feel like a financial genius.
- [00:47]
Sherilyn Ifill
And guess what? It's totally free.
- [00:49]
Dahlia Lithwick
So go on, download the Experian app.
- [00:52]
Sherilyn Ifill
Trust me, having a BFF like this is a total game changer. I'm Dahlia Lithwig.
- [01:03]
Mark Joseph Sturm
And I'm Mark Joseph Sturm.
- [01:05]
Sherilyn Ifill
And this is Amicus Slate's podcast about the law and the courts and the Supreme Court.
- [01:11]
Dahlia Lithwick
It's an attack, really on the legal system itself in favor of a system that the judges can manipulate to their will.
- [01:18]
Jamelle Bouie
From where I sit, it really seems to be as straightforward as. Well, previously it was a Democratic president, and now it's a Republican president.
- [01:26]
Steve Vladek
It all is of a piece to me with a court that is supremely confident in its own infallibility.
- [01:37]
Sherilyn Ifill
Today we are gathering in a long and storied tradition of Slate's end of the term breakfast table, where we invite some of the smartest court analysts we can find to chew over whatever it is that the court has left behind. The term ended Friday, June 27, with five decisions and one case that will be re argued in the fall term.
- [02:00]
Mark Joseph Sturm
But as we've been warning since the Trump inauguration, you have to listen to the beats between the notes to fully appreciate what has gone on these past five months. That means watching what's happening on the emergency docket and reading between the lines of the written opinions.
- [02:16]
Sherilyn Ifill
SCOTUS likes to pride itself on showing its work, and we in the press are very well trained to report on what is visible. But this year, what we don't see happening on stage is sometimes the real.
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Mark Joseph Sturm
Story, and we have an extraordinary brain trust for this year's breakfast table.
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Sherilyn Ifill
Jamelle Bouie has served as an opinion columnist at the New York Times since 2019, offering historical context for today's events. Before that, Jamel was chief political correspondent right here at Slate.
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Mark Joseph Sturm
Sherilyn Ifill is a civil rights lawyer and founding director of the 14th Amendment center for Law and Democracy at the Howard University School of Law, 2013-2022. She served as the president and Director Counsel of the NAACP Legal Defense and Education Fund, or ldf, the nation's premier civil rights law organization fighting for racial justice and equality. You can find Sherilyn's newsletter on substack, and it's called just that, Sherilyn's Newsletter. It is always a must read.
- [03:18]
Sherilyn Ifill
And finally, Professor Steve Ladic is a professor of law at the Georgetown University Law Center. He's a nationally recognized expert on the federal courts, constitutional law, security law, and military justice. Steve's book about the shadow docket is like must read material. And he also writes the 1 1st newsletter on Substack, which is also indispensable. So welcome to all our guests. Thank you for being here. And Steve, I think I wanna start with you, if that's okay. You're one of, I think, a handful of court watchers who treats what happens on the emergency docket as though it's equally, if not more important than what happens on the docket that we all get to play along with at home. And yet, as kind of rock em sock em as the emergency docket or the shadow docket has been this year, I don't think anyone could say that the term that ended last Friday was sanitized or burnished or buffed up for public consumption. It seems to me that what we saw at the very end of the term was that six three shadow docket merge and meld with the six to three merits docket. And I just wondered, because you had sort of said watch the two in contrast, if that's your sense and if you have thoughts about why.
- [04:36]
Steve Vladek
So first, yes. And hi everyone. Thanks so much for having me. I'm floored to be able to share the stage with the four of you. I think what's really striking about not just the last couple of weeks of the term, but really the last three months has been how Dalia convergence is exactly the word I would use. We've seen what to my mind has been pretty bad behavior by the court procedurally on emergency applications for some time spill over into what is becoming pretty bad behavior substantively. And you know, to me, the birthright citizenship decision from the very last Friday the court sat, I think is the, in some respects the potheosis of this. I mean, it's the zenith because you have the Supreme Court in purporting to just grant these three modest emergency applications, in some respects completely restructuring the relationship between the Supreme Court and federal district courts. And at the end of a week where earlier in the week, in a case that got much less attention, the court granted emergency relief to the Trump administration in a case in which it had defied the district court not once, but twice. And so, you know, I take these rulings together as this remarkable assertion of power for power's sake, where the Supreme Court is saying, we'll be the ones who decide whether what President Trump is doing is legal or not, not anybody else, including district courts. And part of why that's so striking, Dalia, is because, of course, in the birthright citizenship case, they didn't decide it. And you have Justice Brett Kavanaugh writing a concurrence where he says this is all about the need for a uniform national interim rule that the court didn't provide. So it really is this remarkable and to me, like, bankrupt version and vision of judicial supremacy, where the Supreme Court is claiming all this power and then not actually exercising it.
- [06:28]
Mark Joseph Sturm
So I want to stay on this case, Trump v. Casa, and turn to you, Sherilyn, because we always think of you when the Supreme Court curbs the power of district courts to do district court work. And Trump Vikasa feels like the very embodiment of a Supreme Court that's making it almost literally impossible for these district court judges to continue reining in Trump's lawlessness, something that they've been doing for months, often at great personal and professional peril. This decision, as we know and as we'll discuss, didn't actually get get to birthright citizenship on the merits, but what the court did decide seems to confirm in pretty contemptuous language, I think, that the six Republican appointed justices on the court just fundamentally reject the proposition that the work of federal district courts matters.
- [07:18]
Dahlia Lithwick
Yes. To all of the above, and thank you all so much for having me. I have to say that Trump Vikasa, I would not try to pronounce the word that Steve used, the apiothesis, I think he said, but it is the apex of. So I wrote about this. It really reveals the court's lack of discipline on getting to these things that they have been about for some time. By my own checklist, Trump versus Casa allows them to achieve at least four of those things. One, of course, obviously, is freeing up the executive to do kind of almost whatever they want to do. And so they're like unitary executive on steroids. That's been a project. So for sure, you're absolutely right about their own supremacy. Not judicial supremacy, but supremacy. Supreme Court Supremacy, arrogating to themselves the power to make these decisions about checks and balances, about executive power, about what Congress can do and can't do, and certainly weakening the 14th Amendment. Because even though, as you, Steve, and Mark say, the Court didn't decide the merits issue in the case, they didn't need to. It was actually kind of neat because they could actually give the administration the ability to apply this unconstitutional EO to people that fall under it, that is children who are born to parents, where neither parent is either a permanent resident or a citizen, and ensure that they never have to talk about the merit. So we can't say that the Court struck down this important provision of the 14th Amendment. So they're able to achieve the weakening of the 14th Amendment, which the conservative majority always loves to do. It's always on their list, their checklist of things, but they don't have to do it directly. But the part that really kills me is what you're referring to, Mark, which is this thing about the district courts. And I throw this back to all of you. Did we know that the Supreme Court was, like, this hostile to district courts, let's say, five or 10 years ago? Like, something has happened that has amped this up to the highest levels? I was at the argument, the birthright citizenship argument, and there was a point at which Justice Alito just kind of went off on, like, what district courts do, that they are full of their own power, that they are little kings. I mean, it was kind of absurd. And so I just think what we've been seeing in these cases where this administration is pretty flagrantly playing in the face of district court judges defying orders, subverting the district court, lying to district courts. All of this we have seen and the Supreme Court is aware of, and they seem not to be bothered by it at all. Only we get to decide when the President has gone too far. They're saying, do whatever you want with those silly guys. Do whatever you want with those district court judges. It doesn't much matter to us. There was a point in the Trump vs Casas argument when Justice Barrett asked the Solicitor General, Sauer, are you saying that you would defy the Supreme Court? And he caught himself. And he said, well, no, not really. Would you defy the Court of Appeals? Kind of. Would you defy the Supreme Court? He's pretty much saying, yeah. And she says, so this is like a Cooper versus Aaron thing, right? She's talking about where states believed they didn't need to follow district court orders. Well, that's Just what they've done for the president. They have put the president, the executive, in the place of the state of Arkansas in Cooper vs. Aaron, and they have decided that you don't have to listen to the district court. So I just wonder, did people see this hostility? And maybe I've missed what's the root of it? What is the root of the conservative majority's hostility to district courts?
- [10:53]
Sherilyn Ifill
I can see Jamel wants to answer, so I'll pop in for one second, then I'll spike it to you, Jamel. But I am reminded of, like, one year ago having this conversation about federal prosecutors, right in the immunity argument, this just dripping, angry contempt about the prosecutors who worked on the case and having exactly that reaction that you're having, which is, wait, they're all horrible. Like wildebeests who, like, live in underground lair. Like, where does this anger come from? Jamel, I think you wanted to answer in a more substantive way than my wildebeest comment.
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Jamelle Bouie
No, just a substantive. And I have a very cynical answer, which is that five years ago, 10 years ago, district court national injunctions were primarily hobbling a Democratic president, and now they're hobbling a Republican president, and they don't like it in the same way that federal prosecutors going after a Republican former president, they don't like it. And maybe I'm missing some jurisprudential claims they've made in the past, but just from where I sit, it really seems to be as straightforward as, well, previously it was a Democratic president, and now it's a Republican president. And we have a belief that Republican presidents ought to be able to act in a completely unfettered way, or at least a presumptively unfettered way. Right? Like maybe they'll do something that requires us to step in, but no one should be able to tell them no other than us.
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Dahlia Lithwick
But that would require them then to drill down into the particular excesses that they think these district courts engage, because at some point in the future, presumably, they'll want to actually support something that district courts have done. Just as you point out during the Biden administration with the student loan nationwide injunction, with the moratorium on oil and gas leases, you know where they let those things go. They seem to be throwing out the baby with the bathwater. They seem to be throwing out the actual power of district court judges to engage in a certain kind of decision making that's gonna sweep along with it. Judge Kaczmarek. And how other district court judges who, as Steve points out, they seem to like, there's Something about the tone that seems very targeted at the position and not just at the individuals. Maybe I'm wrong and time will tell, but something seems to be going on here. It's not one of the things that was on my bingo card that they would speak in that language about the role of the district court.
- [13:22]
Jamelle Bouie
I'll just note that in the opinion I believe notes in Kavanaugh's concurrence, there's a note about how none of this speaks to whether or not nationwide injunctions are permissible under the Administrative Procedures act, which conveniently, when Democrats are trying to do things with the federal government, it's often through administrative procedure. So, hey, you can still block, you can still block an EPA rule, you can still block an HHS rule, but if a Republican president wants to issue an executive order, ah, we got, you know, we gotta let that play out. We gotta let that play out through a process that takes a bit more time to resolve.
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Sherilyn Ifill
Go ahead, Steve. And then I want to ask Jamel a history question, but you go first.
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Steve Vladek
I think if there's a theme that cuts across the two very different halves of the Court's docket from this term, I think it's this theme, and I would phrase it slightly, I guess slightly cynically, which is that I think you can see in both the almost always unexplained rulings on emergency applications and in a bunch of the big merits cases, the Court is basically creating an infrastructure where they can sign off on the things they want to sign off on, block the things they want to block, and not really have to work that hard to rationalize which ones are which. And so this is the room that the justices buy for themselves when they don't explain grants of emergency relief, which is we never know if it was because they think the government's going to win or because they have some very perverted view of the equities. If you look at cases like the Texas porn website verification case, where the majority lowers what had been a decades long settled understanding that we apply strict scrutiny in these kinds of cases because we're not going to give states wiggle room. The majority opinion gives states wiggle room. What's one of the great critiques of intermediate scrutiny? It's malleability, the notion that different judges can look at the same statute and apply intermediate scrutiny to get different results. That's not usually true of strict scrutiny. So, you know, I see all of this as sort of circle around the same theme, which is a majority that is very invested in preserving its power. Especially in context in which it can rein in the powers of other institutions that it currently views as, you know, at odds with it. And the reason why I think this is especially dangerous is because it's one thing when the victims of that power restructuring are executive branch agencies. It's something else very different when it's the lower courts, because I don't know how many people on the street are gonna differentiate between decreasing public faith in district court judges and decreasing public faith in the federal judiciary as an institution. And the justices apparent belief that they can somehow separate themselves from district judges in this story, I think, is demonstrably wanton for evidence.
- [16:11]
Dahlia Lithwick
Can I take one more round on this? Because I really think this is important. First of all, Steve, I think you're absolutely right, and this is why I. What I argue is that these justices are no longer judging. This is not what judicial decision making is. What they are doing is creating precisely what Steve said, which is an infrastructure that allows them to basically freestyle, to do whatever they want, depending on the case, depending on the judge, depending on the president. And that's not judging. That's not an infrastructure of rules as a litigator. That's not a litigation structure into which I could make any rational decision making about which cases to bring about, what theories to advance, and so on and so forth. So it's an attack, really, on the legal system itself in favor of a system that the judges can manipulate to their will. But I want to go back on the district courts for a second, because, again, we have to marry this to the kinds of threats that we have been seeing against district court judges. Right? District court judges have been subjected to violent threats. There has been this wave of sending unsolicited pizzas to the homes of district court judges using the name of the young man who was killed, the son of Judge Esther Salas, who was killed in New Jersey several years ago. And if you contrast the response of Chief Justice Roberts, who spoke about something about judges, and that it's not appropriate to, you know, go to the default to impeachment if you don't like a judicial decision, and you contrast it with what Justice Ketanji Brown Jackson said at the First Circuit Judicial Conference, and I happened to be there, it was completely unexpected. It was something she wanted to do. She was only supposed to do the fireside chat about her book. And then she announced very shortly before that she wanted to make remarks, and she gave essentially a speech about district court judges, and she invoked district court judges from the civil rights era and the courageousness and bravery of those judges. So I say this to say that threats against district court judges is about as serious as it gets. And if you are sitting at the head of the federal judiciary as Chief Justice Roberts is, and all you have to say is, you know, impeachment is not the and you contrast it to the passionate and powerful way that Justice Ketanji Brown Jackson spoke and her admonition to district court judges to have courage to continue to do the work. There is something very cavalier, careless and I think, dangerous about the way in which this court is approaching their desire to break down an infrastructure that doesn't give them maximum room to make whatever decisions they want. And I want to make sure that that is on the table because it is is that serious that we are talking about the actual safety of federal district court judges. We're talking about judges being lied to, we're talking about judges orders being defied. These are fundamental structural things for our legal system. And I just won't let them off the hook with like they want to do whatever they want. I think it's important to point out that they are doing it in a reckless and careless manner that has become the feature of this six member supermajority. A kind of carelessness and a recklessness about the process by which they arrogate this power to themselves that threatens the entire system.
- [19:29]
Mark Joseph Sturm
I definitely wanna echo Sherrilyn's praise of the speech that Justice Jackson gave then. And I'll note that she brought this back up in her dissent in Trump because she has a line slamming the majority's quote, complicity in the creation of a culture of disdain for lower courts, their rulings and the law as they interpret it, which will surely hasten the downfall of our govern institutions, enabling our collective demise. I mean, I don't think she could put it in much starker terms than that. That is as blunt a warning as they come.
- [19:59]
Sherilyn Ifill
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- [20:42]
Mark Joseph Sturm
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- [21:17]
Sherilyn Ifill
And we're back with Amicus Annual End of Supreme Court Term Wrap up.
- [21:23]
Mark Joseph Sturm
I want to pull a different thread out of this decision and pivot the conversation a little bit toward history and the use and misuse of it. Jamel, I'll start with you. One of the many sins in Justice Barrett's opinion in Trump Vikasa made me think of your work, specifically the kind of mangling of originalism and history to achieve a desired outcome. I think she pairs that with the ongoing self aggrandizement of the Supreme Court's power at the expense of Congress and the lower courts. We saw this butchering of history a fair amount this term. We saw it a ton last term, the one before, the one before that. The Court's selective and dubious use of the historical record to get where it wants to go. It was also present in the Planned Parenthood v. Medina case where the Court really gutted a key provision of the Civil Rights act of 1871. So I'm just wondering if you can sort of talk us through from your perspective, how the Court continued this trend and maybe help us sketch the shape of the America that the Supreme Court's conservative supermajority is constructing or trying to bring us back to in its time machine.
- [22:29]
Jamelle Bouie
I think one way of getting at this is looking at Justice Jackson's use of history. Justice Jackson, and I apologize, I do not remember the exact opinion, but in a recent opinion she made reference to the colored conventions in the 1850s, 60s, 70s. So for those who aren't aware, black Americans in the antebellum period and afterwards are engaged in these regular political conventions that are usually organized in places where there are large free black populations Baltimore, Philadelphia, New York, and they gather basically to debate the issues of the day. And there are these really valuable resources for actually getting a sense of what free black Americans thought about, like critical constitutional issues. If you want to know, for example, what free black Americans thought about the 13th Amendment, they're arguing about it in conventions. It's a really remarkable source for contemporaneous knowledge of what people who are on the outside of the mainstream political life, are thinking about things happening in Washington. That's an interesting use of history because it's not just looking at what's happening in legislature. It's not just looking at what's happening among people with power, but saying that the common understanding encompasses a quite large group of Americans whose voices deserve to be part of the mix. And if you include these voices of Americans and how you're shaping common understanding, you may come to a different outcome and may come to a different set of conclusions about what people understood to be the case at the time.
- [24:06]
Dahlia Lithwick
Time.
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Jamelle Bouie
You can contrast this with how the majority has been using history, which is exactly the opposite, which is really narrowly focused on people of influence in formal institutions and their conclusions and their perspectives, which is necessarily limiting. Right. Like if you're looking at a bunch of wealthy white men in the 1860s or the 1870s or the 1880s or whenever, they're going to have a necessarily blinkered and narrow perspective on these key questions. But even then, and I would add that even then, the Court, let's say, has treated absences of understandings among these lawmakers as evidence that they didn't conceptualize their power in a way that the Court would prefer. Right. So, like, I'm gonna go back to Bruen from a couple years ago. The absences of lawmakers speaking about their authority to regulate firearms is treated as affirmative evidence. They didn't think they could, but you can't really draw that conclusion. Conclusion. Like, no historian would draw that conclusion from that absence. You would have to actually prove in a more rigorous way what they thought in an affirmative way. But I found that this majority is not just picking and choosing, but treating silences as almost dispositive. They didn't say it, so therefore it didn't exist. But that's not really how legislative power works. That's not really how history works. And it all leads to, I think, a use of history that is quite malleable and can be deployed towards sort of narrow and particular ends. Like, it's not really about history. It's like, not really history in a critical sense. Right. It's not an impartial attempt to uncover what people at the time thought. It's an attempt to reconstruct your own sort of vision using the materials of the past.
- [26:01]
Mark Joseph Sturm
Yeah. I'm so glad you noted that example that Justice Jackson gave, because that does come from the Planned Parenthood versus Medina case. And so that was a case where the majority, and also, even more emphatically, Justice Thomas argued that the meaning of the word rights might not include a benefit like Medicaid and access to a doctor under Medicaid. And Justice Thomas, in spelling out why that would be, cites just a smattering of kind of cherry picked examples of white guys writing in the second half of the 1800s. And Justice Jackson and has this excellent retort where she says, why are they the voices that matter and only them? Why are we only taking this narrow slice of history from white men and not looking at how other people understood words in the context of their times? And that's where she cites the colored convention and says actually they understood a right much more broadly than the white men that Justice Thomas cites. And that might be because they have more experience than those white men having their rights taken away and having to fight for those rights. And I just thought that was a very powerful example of Justice Jackson continuing to fight the good fight on originalism and the selective use of history. Although I guess as long as she's sort of arguing from the sidelines, the majority is incapable of feeling any shame over its butchering of the historical record.
- [27:18]
Dahlia Lithwick
It's also true that there is some cherry picking. I mean, Justice Thomas loves to, you know, quote Frederick Douglass. So it's not like he's never willing to refer to someone who's not in the legislative hall. But this is all part of the broader project of, of reshaping and actually diminishing the project of the 14th Amendment. And you can see Justice Jackson, precisely in the example that you, Jamelle and Mark, talk about pushing the Court to understand the broadness of this project. Once you start talking about the enforcement act of 1871, and you start talking about what the Congress felt they had to do to protect against Klan violence and how Klan violence was seen as undermining the potential, the promise of the 14th Amendment. You're actually now saying that the Congress at that time was engaged in a much bigger project than just like ratifying something and saying people are citizens and that's the end of it. Right. They were trying to do something much more robust, layered, powerful, and they were doing it with a recognition of the kind of forces that were coming against them to try to undermine that project. And once you open up the lens of that conversation, then not only does it lead you to look into the record and see that not only were they having colored conventions, but those conventions were signing petitions that they were then sending to the committee that was drafting these pieces of legislation and drafting the 14th amendment, but it also makes you understand the reset that that Congress was trying to create with the 14th Amendment. And that reset, that reset is contrary to the vision of this country, of the conservative majorities and of the right in general. And so they're pushing back against a conceptual way of thinking about this second founding, this restarting of our country after the Civil War. And it's as fundamental as that. And it's why I so appreciate not only that she's willing to do it, but the dexterity with which Justice Jackson is able to mine that history and present it and force it into the conversation with her colleagues.
- [29:20]
Jamelle Bouie
Just to add one really quick niche note to that, I would recommend that viewers, listeners really do dig in to the legislative record around the 14th, 13th, 14th and 15th amendments. It's pretty accessible. It's not hard to find. And just read the speeches of the lawmakers engaged in crafting these amendments because what becomes immediately clear, as Sherilyn notes, is that they have a very broad vision for what they're doing. It's odd to sometimes read the majority when it's dealing with, with cases related to the 14th Amendment. And there doesn't seem to be any awareness that these amendments are being crafted in the wake of the most catastrophic conflict the country had ever experienced. And so they're just right there. They're not dealing in small bore stuff like they just experienced a world altering event and they're trying to grapple with it constitutionally and they have big ideas for what that means.
- [30:16]
Sherilyn Ifill
I just want to maybe connect this up to where we started with Steve, because I think it raises these questions about what's been happening on the shadow docket and what's happening on the merits docket. And I think, as I said earlier, there has been this kind of zigging and zagging on the shadow docket that suggests that the court isn't necessarily all in for all of it, except that then they kind of zag and it looks like they all are all in for some of it. And I want to stipulate, I think we've all said this in different ways today. The court is all in for the court. I mean, that is clearly the way to interpret both the merits docket and the shadow docket. But, Steve, I would love for you to unpack for us, if you would. You know, it seemed like for a moment there on the emergency docket when the court was looking at the Alien Enemies act, it believed in due process, right. The AARP decision. But then three days later, it, you know, removed temporary protected status from hundreds of thousands of Venezuelans and then it June 23rd says, go ahead and deport, you know, migrants to third countries where they may be tortured and they have no right to due process. So I guess I'm trying to understand how to view this public project and this kind of private shadow project. Are they two things or have they just the courts abandoned the notion that anybody gets to process. And at the end of the day, as long as the court is the decider, it doesn't matter.
- [31:43]
Steve Vladek
I think the hard question here is was the court's now increasingly outlier intervention in those two Alien Enemies act cases about protecting due process? Dalia. Or was it about protecting the court? And the more the time goes on, the more it looks like it was the latter. So just to sort of put this back into chronology for a second, so on April 7th in the JGG case, the court had given Trump at least a little bit of what he wanted in the first Alien Enemies act case by basically saying, hey, if you're going to challenge your removal under the statute, you have to do it in a habeas petition, which means you have to file where you're being held. And oh, by the way, like, hey, look at the chaos that ensues when you can't have a single uniform nationwide challenge to a federal policy. Here we are on July 1st, and we still don't have an answer from the Supreme Court about whether the president's invocation of the Alien Enemies act is lawful on its face, but put that aside. So it's worth noting that even that ruling was throwing a district judge in that case, Chief Judge Jeb Boasberg, under the bus because Boasberg had blocked the removal of about 250 Venezuelan men to El Salvador and the government had defied him. But the majority says, don't worry everybody because we're going to ensure that going forward there's notice and there's a meaningful opportunity for these folks to challenge their subject to the statute before they're removed. And even Justice Kavanaugh writes one of his Kavanaugh special concurrences where he says, see, look everybody, it's not a big deal. They're gonna get due process. Well, lo and behold, there was one district court in the Northern district of Texas where it didn't look like that was gonna happen and where you had, you know, credible reporting that there was literally a bus of migrants on their way from the Blue Bonnet Detention Facility to the, I think it was the Abilene Airport. And the Supreme Court's like, well, shoot, you know, we're blocking that. And so you had this remarkable, you know, 12:50 in the morning order back on April 19th, followed up by this lengthier opinion in May. And Dolly, I think a lot of us, and I'll put myself in this category, had thought that maybe that was the court saying, hey, there's a line and you crossed it. But it turns out the line wasn't due process. The line was you didn't do what we told you to do. And so when the government's defying a district court, oh well, no, nevermind. But when the government's defied on the Supreme Court, well, in that case, then it's 7 to 7 2. And I think that's, I guess it's better than not even having the second one. Better that the Supreme Court at least will defend its own authority. But it gets us back to the same problem, which is the Supreme Court thinking that it can just sort of do what it wants when it wants with no consequences to its own credibility and to its own ability to do anything in the long term. And I'll just say that's what strikes me about even cases like Medina, I mean, Jamel and Sheryl, and already got all the way into so much of what's wrong with Justice Gorsuch's 14th Amendment analysis. How about just the Medicaid statute? You want us to believe that Congress put a provision in the Medicaid statute that gives everyone a right to pick their provider and no means for anybody to enforce it except HHS by taking away all of the state's Medicaid funding, which would screw over Medicaid recipients even more? So, Dalia, it all is of a piece to me with a court that is supremely confident in its own infallibility. And just to quote the second Justice Jackson, Robert, not Ketanji, the court is not final because it's infallible. The court's infallible only because it's final. And the Court's finality rests upon a heck of a lot of softer considerations than justices might appreciate.
- [35:33]
Sherilyn Ifill
We are going to take a short break. This show is sponsored by BetterHelp. Workplace stress is now one of the top causes of declining mental health. With 61% of the global workforce experiencing higher than normal levels of stress. To battle stress, a holiday is great, but it isn't a long term solution. Therapy can help you navigate whatever challenges the workday or any day might bring. With. With over 30,000 therapists, BetterHelp is the world's largest online therapy platform, having served over 5 million people globally. It's convenient, too. You can join a session with a therapist at the click of a button, helping you fit therapy into your busy life. As the largest online therapy provider in the world, BetterHelp can provide access to mental health professionals with a diverse variety of expertise. Unwind from work with Better Help, our listeners get 10% off their first month at betterhelp.com Amicus that's BetterHelp. H E L p.com Amicus A lot.
- [36:38]
Dahlia Lithwick
Of short daily news podcasts focus on just one story, but right now you.
- [36:43]
Sherilyn Ifill
Probably need more on up first from.
- [36:45]
Dahlia Lithwick
NPR, we bring you three of the.
- [36:47]
Sherilyn Ifill
World'S top headlines every day in under 15 minutes.
- [36:51]
Dahlia Lithwick
Because no one story can capture all that's happening in this big crazy world.
- [36:56]
Mark Joseph Sturm
Of ours on any given morning.
- [36:58]
Dahlia Lithwick
Listen now to the upverse podcast from npr.
- [37:02]
Sherilyn Ifill
This Supreme Court term isn't business as usual. It's a full blown battle over democracy. Justices are shattering precedent, grabbing power, and even turning on their own. It's messy, it's high stakes, and it's already reshaping how the country works. Hosted by three constitutional law professors, Melissa Murray, Kate Shaw and Leah Lynch Lippman. Strict scrutiny breaks it all down legally, clearly, and with just the right amount of side eye. They're smart, they're funny, and they make everything a little easier to understand. They make you smarter, too. New episodes drop every Monday. Subscribe and listen wherever you get your podcasts and on YouTube. More now from the Amicus All Star breakfast table as we process the Supreme Court term that just ends together.
- [37:51]
Mark Joseph Sturm
We've talked about Planned Parenthood versus Medina. This is the case in which the Supreme Court basically nuked the Medicaid statute by holding that states can defund Planned Parenthood even though it's a qualified provider by denying patients the right to access care there. And there's nothing patients can do about it. They can't sue. And that was, as Sherilyn mentioned, as Jamel mentioned, very clearly, an attack, among other things, on civil rights laws enacted after the Civil War to protect individual rights. I think our friend Ian Millhiser thinks a lot of us think that this was abortion distortion in the sense that the culture War court saw abortion on the table. This case wasn't even directly about abortion, right? Federal dollars aren't paying for it, but the culture war court could not let Planned Parenthood continue to receive this money, so butchered the statute and precedent in order to ensure that states could defund Planned Parenthood providers. And I want to bring in two other cases where I think there's very clearly culture war cent sentiment tilting the scales of justice. Those are Mahmoud v. Taylor and Scrametti versus United States. So, in Mahmoud v. Taylor, the Supreme Court held that parents of public school children have a First Amendment right of religious liberty to prevent their children from seeing LGBTQ books in schools. They have to be able to opt out their children from seeing those books. And in Scremetti, the Supreme Court upheld state bans on gender affirming care for minors. And I guess I'll start with you, Sherilyn. I just. I just want to lay this out as clearly as I can this term. The Supreme Court held that there is a constitutional right for parents to prevent their children from seeing books that happen to feature LGBTQ people, and also refused to rule that parents have a constitutional right to provide their children with gender affirming care. And I'm just wondering what split screen you see there and what it tells us about the Court's broader agenda.
- [39:46]
Dahlia Lithwick
You know, I think many of us on this particular session have tried to say it as nicely as possible, but I think there's simply no way to deny that this conservative majority is driven by a worldview that they intend to impose on the rest of us. And they don't, because they feel that they have made so many strides in ensuring their own supremacy, they don't much feel the need to cover their tracks. They don't feel the need to create consistency out of their dialogue doctrine. The Scarmetti case. This again goes back to thinking about how the Court thinks about what happens below, how the Court thinks about. Because if we're gonna talk about district courts, it means we're also talking about the record below and the record below. That's the facts of what really happened, and it's also the facts of what could happen depending on how the decision comes out. And one of the ways that this Court is determined to chart a path to being able to do whatever they want is swatting away the account that is created below that would suggest that what they are saying has to happen has to happen the way that they've said it. And so we saw it in Scremetti. I think you all may remember that moment in the oral argument when Justice Alito suddenly started talking about a study on gender affirming care from Britain and essentially harangued Solicitor General Prelogar and said she had not included this in her brief and suggested that she was kind of engaged in some sleight of hand. And of course, she, being the nice person that she is, said no I didn't include it. Of course. The report hadn't been done yet. It's not part of the record below. But he was so determined and so bent on creating a narrative about gender affirming care that it hardly mattered what had been adduced below to suggest that what Tennessee was about was something pretty nefarious and pretty close to imposing a religious view on gender affirming care for young people. In the case involving the dito of parents to school books that don't promote LGBTQ individuals or choices, but present them as being part of the American fabric, as something normal, and actually provides a roadmap for kids to be able to have a language, to be able to address these issues when they confront them in real life. Once again, the court almost creates a story. And you remember this at oral argument, there was some point at which Justice Gorsuch, maybe it was this case, maybe it was another case in which he insisted that the wearing of a leather jacket meant that there was some BDSM stuff happening. You know, we have this book that Justice Alito reproduces in the opinion, the book about, you know, Uncle Bobby getting married, which has the exact opposite effect. Anybody reading that book in the opinion would say, what's the problem? You know? But he thinks that showing this in this book, he's going to create his own record for the release of his opinion and skew it in a particular way. So I don't think that they're trying to create any consistency, and as a result, I won't try to make any for them. I don't feel like I have to cover for this court anymore. I don't feel like I have to say what they're probably doing here is like, what they did in this or that. It is clear that they are taking these cases on an ad hoc basis. They are deciding them in a way they don't care whether they cluster consistently with a set of doctrines. In the piece I just wrote about Trump versus Casa, that's what I find most bothersome. What I find most bothers him is the court abandoning anything that even approaches resembling judicial decision making and an effort to create rules through which we can categorize these cases. I look at the extraordinary work that Steve does. You know, he's just, like, grinding it out. Like, he's getting this stuff out. He's getting it out fast. He's trying to do it responsibly. He has to deal with Edith Jones trashing him and collecting all his texts. Right. But he's doing the work that we're all doing on this call, which is trying to make sense of something and trying to even give things the benefit of the doubt by figuring out how they line up with other things. But increasingly I come to the end of this term and they don't line up. And I don't think it's my job anymore to try to set these things into categories that make sense, that suggest that there's some predictability for litigants in approaching this. That means you have a fair shot and a chance. And so my answer to your question mark is a little long winded and slightly hysterical, but it is that that put those two cases together. And so what? It doesn't add up to anything except this court deciding what they want to do and insisting on their worldview. If I had to make a comparison, I would take it back to Shelby county versus Holder, where you have a Supreme Court that has a whole record before it about what is happening around voting and race in the south, has an extensive record created by Congress, the body given the exclusive power to enforce the 14th and the 15th amendment. And you have Chief Justice Roberts saying, yeah, but things have changed. He's got his own worldview and the record therefore doesn't matter. And what has happened below doesn't matter. We saw it in ssfa, you know, you have a two week trial, it's not discriminatory, you know, it doesn't matter. And so that's of a piece with the district court, you know, attack as well. But it's more all about the court just having power to, when it gets to them, decide what flies and what doesn't fly, lie. And that's very much obviously influenced by their worldview and their very strong religious views. Should they care about the fact that there were people during the civil rights movement who used religion as the reason why they resisted integration? In restaurants, for example, you know, in the Piggy park case where, you know, the, the owner of the restaurant says, I don't believe in race mixing because it's against the will of God. That's why he won't serve black people in his restaurant. Right. Or people who viewed interracial marriage as going against their religious beliefs. So what are they saying should happen in a classroom, in a classroom where there are kids who have all come from all kinds of families, all kinds of backgrounds, have all kinds of beliefs. What is supposed to happen? We're supposed to let each individual parent opt out. So this is where the court gets like collateral benefits. You also get to erode the public school system. You also get to erode a kind of common narrative in public schools. I mean, these cases are the gift that keep on giving. And yet the court is able to continue us in a conversation that suggests that there's some categorization here that will make this all make sense, and it just doesn't.
- [46:12]
Sherilyn Ifill
Sherilyn, just let's be clear. Just as there is no crying in baseball, there is no saying on amicus, I'm hysterical, because it turns out we weren't hysterical. We were just right.
- [46:23]
Dahlia Lithwick
No, we were not. That makes me hysterical. Like, you know, how much time was wasted? How much time was wasted trying to believe that something more was going on.
- [46:32]
Sherilyn Ifill
I would love, Jamel, if you have any thoughts on this, because my brain went exactly where Cherilyn just took us, which is, you know, the descent in Mahmoud, which is like you have just jettisoned not just the way we think about religious liberty and the way we think about separation of church and state, but public education as it was constructed as an end in itself. And the just the cavalierness with which it's just like, yeah, but we don't like this book. And parents have, you know, religious liberty to veto a book. And I think that Sherilyn makes just such an important point about the sort of myopic, like, loss of eradicating massive public goods without even a thought, I guess because maybe their kids don't go to public schools, I don't know. Or because they're, you know, in the majority religion that is not going to suffer from this. But it's really hard to look at this as anything other than such a, like, sort of dancing on the head of a pin about the liberty of a couple of parents who are objecting to a couple of books. And what is being left behind feels like it is just galactically important and irrelevant to the majority.
- [47:45]
Jamelle Bouie
It gets to something Sherilyn said earlier, which is that they're not really judging. Right. This isn't judicial decision making. Like, as I imagine, one of the responsibilities of someone in the position of making these kinds of decisions is a balancing competing concerns. Right. You have these parents who are offended by this book and do not want their children to see it. But we also live in a free society, and the community is collectively democratically decided that they want to have this kind of educational system, these sort of educational resources available. And if the children aren't being, you know, know, clockwork oranged into reading a book, then what gives the parents the right to essentially have veto over what this community has decided they want for Their schools. The majority just doesn't seem to think in these terms. Think in the terms that someone with strong religious beliefs has to balance that against the fact that they live in a society where not everyone shares their beliefs. They live in a pluralistic society where they must share space with people who are different. Different. And the court saying, essentially, no, you don't. You don't have to share that space at all. You can impose, in fact, on that space for your own belief system. It doesn't just do violence at public schools. It does violence to democratic decision making, period. In addition to my also thought when I saw that was like, oh, so like, if a student has a racist parent and they see like a book that has like a black and a white kid hanging out, out, I guess they can just have the book pulled. And I guess schools, to avoid litigation in that case, might just decide they're not going to have any books showing integration. I guess we're back to segregated libraries. At least segregated by the school library is not going to depict any black or white people together because of one crank parent. Right.
- [49:39]
Dahlia Lithwick
So long as that parent. Parent steeps it in their religious beliefs. For sure.
- [49:43]
Jamelle Bouie
Right. Right. Right. For sure. I belong to the Church of Jesus Christ Christian, an actual white supremacist church. Right. This is a real religious denomination in the United States. I belong to Church of Jesus Christ Christian. And under my reading of the Gospels, God does not permit race mixing. And so not only do I not want books showing interracial relationships, but that teacher is married to a black man. Should she be teaching my child? Does the school now have to fire this teacher because a parent has decided that they don't want their child exposed to a person who affirms a lifestyle they believe to be sinful? It's the same thing. And part of what is frustrating to me about these decisions is the lack of honesty. Just sort of just, just, just saying, hey, I mean, obviously they can't do this, but I would almost prefer them to say, I don't like the book. I don't like gay people that much. Give me that. So at least I know what I'm dealing with.
- [50:49]
Steve Vladek
So I think there are just two quick points to make here that haven't, I think, already been said ably and powerfully by Cheryl and Jamelle. The first is we have to remember that part of the problem about distinguishing between the Supreme Court and the district courts is the Supreme Court can do what Jamelle described because they can pick and choose their cases. And so they can say, well, we don't have to take the case of that church. We don't have to take the case of the Jewish parents who object to serving bacon cheeseburgers in public school. Right. Like, we can sit all those cases out and let the lower courts clean up that mess. So, again, right. The first problem here is that the Supreme Court has the ability to sort of not actually be confronted by the consequences of its own decisional uncertainty. The second is there was this popular meme that came out in 2018 that the organizing principle of the modern Republican Party is that there are in groups who the law protects and doesn't bind, and there are out groups who the law binds and doesn't protect. That is basically where the Supreme Court's jurisprudence is heading. And, you know, that's. At least we can summarize it. It's a principle. But, you know, it runs all kinds of problems, not the least of which is who decides which are the in groups and which are the out groups.
- [51:57]
Mark Joseph Sturm
So we've reached the point of our last question, and I would love to get everybody's thoughts on it. This is something that Steve gestured toward earlier, and I want to pull it out again as we basically, the conservative justices seem to be betting the ranch that they can cut the legs out from under Congress, the lower courts, federal agencies, pretty much everybody except themselves, but that when they tell Trump it's time to cut it out, that he'll follow their orders. And I just want from each of you and Steve, again, I'll start with you. Is that a good bet?
- [52:28]
Steve Vladek
No. So it's not that it's a bad bet, per se, Mark.
- [52:32]
Jamelle Bouie
Right.
- [52:32]
Steve Vladek
The problem is that it is a bet that they will not be able to control the conditions of. And so if and when we finally get to a big merits case where a majority of the court really wants to spend capital to push back against Trump, the extent to which that decision actually will force Trump to, you know, kneel is going to depend entirely on factors beyond the Supreme Court's control. And how popular is Trump at that moment? Right. How far away are we from an election? How much is he still, you know, unified within the Republican Party party? And the tricky part here is that the way that the court was able to sort of push back and to basically force presidents to do things historically was that the political consequences of defying the court would have been too extreme. Right. Why does Nixon turn over the Watergate tapes? Why does Eisenhower send the army into Little Rock? I mean, right. Why does George W. Bush let the Guantanamo detainees bring Habeas petitions. Right. It's not because they had some great moral compulsion to follow the Supreme Court. It's because the politics would have been against not doing it. And when you have muddied the political waters by doing nothing to push back against attacks on lower courts and on the institutions of unelected judges, you know, how many times we heard J.D. vance say, you know, unelected judges shouldn't be able to thwart the mandate that President Trump was sent to office with. Guess what? The Supreme Court isn't elected either. And so, you know, Mark, it's not that I don't think the court will be able to push back when the time comes. It's that I have no faith that they will be able to and that they will be at least partly complicit in the reason why if they're unable to do so.
- [54:11]
Sherilyn Ifill
Sherilyn, thoughts on this?
- [54:13]
Dahlia Lithwick
Well, I'm going to just depress everyone, but I'm going to say that I think that they are so on the same page that we won't have to worry about it. Right. I think Trump knows exactly how far he can go, which is why, of course, they don't challenge the merits in Trump versus Casa. Right. Trump has got the wind at his back with this court. He's not going to force the court to do something that would be problematic for either of them. Right. Those who are working with the president, including those at the Justice Department and other lawyers working with him, are creating and navigating pathways to avoid that showdown that you're describing and to accomplish Trump's goals without ever having to have that moment that you're talking about where they have to choose one or the other. And I think Trump versus Casa is the quintessential example of that. They're getting what they want anyway. And I would just say that given what we've seen from this administration, we can expect expect masked ICE agents to show up at maternity wards or to show up at the homes of new parents who are noncitizens or who at least one is a noncitizen and not a legal resident demanding their baby right pursuant to a deportation order. Like, there's no reason to believe that that is not, in fact, what is going to happen. So the Supreme Court just doesn't pay attention to the consequences. Tells us in the opinion, we make no argument. We decide nothing about the constitutionality of the eo. So that allows them to avoid avoid it. But he gets what he wants anyway. And so I think that it is not difficult for them to avoid the conflict that you're describing, Mark, that will allow Trump to carry forward his agenda and allow this court to still have plausible deniability about taking actions that would be considered across the board, utterly beyond the pale.
- [56:10]
Mark Joseph Sturm
Jamel, last word on this.
- [56:12]
Jamelle Bouie
I'm very much on the same page as Sherilyn here. I can't imagine the court putting itself in a position to have that kind of confrontation. I do think, though, to Steve's point, that if I extend any bit of charity to the majority, I do think they probably say to themselves, you know, if something really shaky goes down, right, like, if something really extreme happens, then we're gonna. You know, we're gonna step up and make sure it doesn't go too far. But the problem, as Steve notes, is that you keep giving him yards, keep giving Trump yards, giving up yards again and again and again, and now it's two yards down, and all Trump has to do is, like, not even toss anyone, Just sort of hop over the defensive line and line in the end zone, and you get the point. And the court is thinking that that will be the time where they can play defense, where they can really kind of shape up and start stop him. And it's like, well, no, it's too late. By then, you've already let him get all the way down the field. And in fact, your refusal to play strong defense when he picked up the ball gave him the confidence to keep pushing down the field, right? Like, gave him the confidence to keep moving and moving and moving and moving. And so by the time you decide to step up, to really go for it, the game's already been lost. And so if I extend the Courtney charity, I think they're just naive. And I do want to say this. I think there is something to the fact that these six people, the majority here, who have been in an incredibly cloistered environment, not just as justices, but as members of sort of like the Republican Party establishment going back to their 20s. John Roberts in his 20s, is part of this world. I actually do think that there's just a level of unreality. They don't actually perceive the world in the way that we do, aside from ideology, but just sort of how they've been socialized as human beings. And so when I think of when I try to get into the headspace of someone like John Roberts or Brett Kavanaugh, I think they look at Trump and they see a Republican president, like ones they've worked for in the past, and they're like, president should be able to fulfill his promises to the American people. And there's just no awareness of of any distinctiveness with that president or any awareness of the consequences of letting this particular president do what he wants.
- [58:41]
Mark Joseph Sturm
Jamelle Bouie, Sherilyn Ifill, Steve Vladek, thank you so much for joining us.
- [58:51]
Sherilyn Ifill
And that is all for this episode. Thank you so much for listening in. Thank you so much for your letters and your questions and your thoughts and your comments. You can always keep in touch@amicuslate.com or you can find us@facebook.com AMICUSpodcast Sara Burningham is Amicus Senior Producer. Our producer is Patrick Fort, Hilary Frye is Slate's Editor in chief, Susan Matthews is Executive editor, Mia Lobel is executive producer of Slate Podcast and Ben Richmond is our Senior Director of Operations. Thanks also to Brian Flynn for his help setting up this incredibly complicated live zoom. We will be back on Saturday with an Amicus plus bonus episode for our subscribers. Mark and I are going to be tackling all your burning end of term questions. You can subscribe to Slate plus directly from the End Amicus show page on Apple Podcasts and on Spotify, or you can visit slate.com amicusplus to get access wherever you listen. We'll see you there.
- [60:04]
Mark Joseph Sturm
Hi, I'm Josh Levine. My podcast the Queen tells the story of Linda Taylor. She was a co con artist, a kidnapper, and maybe even a murderer. She was also given the title the Welfare Queen and her story was used by Ronald Reagan to justify slashing aid to the poor. Now it's time to hear her real story. Over the course of four episodes, you'll find out what was done to Linda Taylor, what she did to others, and what was done in her name.
- [60:35]
Steve Vladek
The great lesson of this for me is that people will come to their.
- [60:40]
Dahlia Lithwick
Own conclusions based on what their prejudices are.
- [60:42]
Mark Joseph Sturm
Subscribe to the Queen on Apple Podcasts or wherever you're listening right now.