Amicus With Dahlia Lithwick | Law, Justice, and the Courts
Episode: Playing Chicken With the Constitution
Release Date: April 19, 2025

Overview

In this compelling episode of Amicus, host Dahlia Lithwick, alongside Slate Senior Writer Mark Joseph Stern and esteemed guests Leah Littman and Mary Ziegler, delves deep into the tumultuous landscape of American constitutional law. The discussions primarily focus on high-stakes legal battles involving the Trump administration's defiance of court orders, the burgeoning personhood movement, and the far-reaching implications of the Supreme Court's decisions post-Dobbs v. Jackson Women's Health Organization.

Executive Branch and the Abrego Garcia Case

Court Cases and Rulings

The episode opens with Mark Joseph Stern recounting his firsthand experience in a Maryland courtroom, observing Judge Paula Sinis's exasperation as Justice Department lawyer Drew Ensign ambiguously interprets the term "facilitate" in relation to Kilmar Abrego Garcia's detention in El Salvador. This case highlights the executive branch's ongoing resistance to comply with court orders aimed at ensuring Garcia's humane treatment and eventual return.

Notable Quote:
Leah Littman (02:15):
"The executive branch has to respect basic principles of due process. Like this is not a game of chicken where we back down from the Constitution. Like that's not how this works."

Administration's Defiance and Smear Campaign

Leah Littman articulates the Trump administration's blatant disregard for the Supreme Court's unanimous decision mandating Garcia's return. The administration's strategy involves filing minimal briefs that offer no substantive updates and redefining legal obligations in a manner that absolves them of responsibility. Additionally, the administration has engaged in character assassination, with Attorney General Pam Bondi labeling Garcia a terrorist despite the absence of credible evidence.

Notable Quote:
Mark Joseph Stern (07:28):
"The fact remains that those three flights on March 15... continue to be a horrifying harbinger of where all our constitutional rights are heading."

Judicial Reactions and Consequences

Judge James Boasberg's recent ruling exemplifies the judiciary's frustration with executive overreach. He has found probable cause for criminal contempt against Trump administration officials for their non-compliance with court orders, sternly warning of the erosive effects on constitutional principles if the executive branch continues its defiance.

Notable Quote:
Leah Littman (15:05):
"This is what I wanted to see from the Supreme Court... It's horrifying."

Personhood Movement and Reproductive Rights

Interview with Mary Ziegler: Historical and Current Perspectives

Mary Ziegler, a legal historian and expert on reproductive law, joins the conversation to unpack the origins and evolution of the personhood movement. She argues that the movement to establish fetal personhood is a long-standing strategy aimed at embedding restrictive reproductive rights within the U.S. Constitution, a process accelerated by the Supreme Court's Dobbs decision.

Historical Context of Personhood

Ziegler traces the personhood movement back to the 1960s, highlighting its roots in Catholic advocacy and its transformation into a broader conservative Christian endeavor. The movement seeks to redefine constitutional rights to include fetuses, thereby criminalizing abortion and potentially other reproductive actions such as IVF and miscarriage management.

Notable Quote:
Mary Ziegler (34:39):
"Personhood started as a sort of like, well, what else are we going to say? Like, if people want this reform, let's just say they can't have this reform because it's unconstitutional."

Current Legal Implications Post-Dobbs

The Dobbs decision has served as a catalyst for the personhood movement, pushing it from theoretical advocacy to actionable legal strategies. Ziegler emphasizes that this movement now confronts critical issues such as prosecuting miscarriage management and regulating fertility treatments, areas previously unchallenged in the realm of reproductive rights.

Notable Quote:
Mary Ziegler (59:00):
"It's literally a battle between ideology and political reality and whether democracy forces the movement to moderate what it's asking for or whether it can kind of give in to those ideological impulses."

Role of Originalism, Race, and Religion

Ziegler discusses the complex interplay between originalist legal interpretations and the personhood agenda. She explains how originalism has been co-opted by the personhood movement to lend constitutional legitimacy to its goals, despite the original intent of the 14th Amendment not encompassing fetal rights.

Additionally, she explores the undercurrents of race and religion within the movement, noting that early personhood proponents drew analogies between fetuses and marginalized racial groups to advance their agenda. This strategy has evolved, reflecting broader conservative movements and intertwining with racial politics, particularly in the context of civil rights.

Notable Quote:
Mary Ziegler (54:07):
"It's less intuitive to people that this would be a story about race... it tells you a lot, I think, about our racial politics when you drill down into what people mean when they talk about personhood."

Future Outlook and Recommendations

Looking ahead, Ziegler predicts that personhood legislation will continue to proliferate at the state level, potentially escalating to federal courts. She warns of the unpredictable nature of Supreme Court decisions and the possibility of new, stringent reproductive laws that could further restrict and criminalize reproductive freedoms.

Notable Quote:
Mary Ziegler (65:42):
"Personhood is very much on the agenda... I think we are going to see that it matters even more to people than we already think."

Conclusion

The episode concludes with a poignant call to action, urging listeners to engage in the broader struggle for reproductive rights and democratic integrity. Both Leah Littman and Mary Ziegler emphasize the interconnectedness of defending constitutional principles and safeguarding reproductive freedoms, highlighting the necessity of sustained public advocacy and political participation.

Notable Quote:
Leah Littman (73:12):
"I'm not going to let them win. Right. Like, that is just not the solution here... it's still a fight worth participating in."

Key Takeaways

• Executive Defiance: The Trump administration continues to resist court orders, exemplified by the Abrego Garcia case, undermining due process and constitutional mandates.

• Personhood Movement: Long-established since the 1960s, the movement seeks to enshrine fetal rights within the Constitution, with far-reaching implications for reproductive freedoms.

• Judicial Responses: Federal and state courts are increasingly confronting executive overreach, though challenges remain in enforcing compliance.

• Interconnected Struggles: Protecting reproductive rights is intrinsically linked to upholding democratic principles and resisting ideological overextensions.

• Public Engagement: Active participation in voting, advocacy, and supporting democratic institutions is crucial in countering erosive legal trends and preserving constitutional liberties.

Amicus continues to illuminate the intricate and often contentious interplay between law, politics, and societal values, offering listeners a nuanced understanding of the forces shaping America's legal landscape.