Amicus with Dahlia Lithwick

Episode Summary: "Ready, Set, Gerrymander!" (June 29, 2019)

Main Theme / Purpose

This episode provides an in-depth roundtable analysis of the Supreme Court's decisions at the end of the 2018 term, focusing especially on the landmark cases addressing partisan gerrymandering and the census citizenship question. Host Dahlia Lithwick is joined by Professor Leah Litman (University of Michigan, co-host of Strict Scrutiny), Professor Pamela Karlan (Stanford Law), and Slate’s Mark Joseph Stern. The conversation explores how these rulings affect democracy, the law’s power to address voting rights, and the evolving dynamics within the Supreme Court.

Key Discussion Points and Insights

1. Grumpiness about Political Discourse and the State of Voting (00:34 – 03:21)

• The episode opens with a lament about the focus on political debates rather than urgent legal threats to democracy, especially as rulings seem to diminish the power and significance of voting.
  • Lithwick: “Can we please stop talking about the freaking damn debates for one second?...all we wanna do is watch beauty pageants about voting.”
  • Litman: “I don’t think you’re grumpy enough. Because it’s not just that the Supreme Court said that even if you do vote, your votes likely won’t count.”

2. Supreme Court Ruling on Partisan Gerrymandering (03:21 – 11:34)

Case Overview

• Stern: Explains the Supreme Court’s decision that partisan gerrymandering claims are "political questions" beyond the reach of federal courts (03:50). This effectively closes the door to federal challenges against extreme redistricting for partisan advantage.
  • Quote: “Chief Justice Roberts' majority opinion shut the courthouse doors, or at least the federal courthouse doors, to partisan gerrymandering plaintiffs forevermore.” (04:31)

Majority vs. Dissent

• Lithwick: Recaps the majority’s position (Roberts) as judicial restraint, arguing courts can’t find workable standards for partisan gerrymandering.
• Karlan: Emphasizes the court isn’t endorsing gerrymandering as good, just declining to police it federally, noting “you might call it the ‘you ain’t seen nothing yet’ problem”—now there are no more limits (05:55).
  • Quote (Karlan): “I think you’re going to see coming out of the 2020 census some really amazing redistricting…as bad as the gerrymanders we’ve seen have been, it’s entirely possible we’re going to see a whole nother thing after 2020.” (08:10)

Kagan’s Dissent

• Litman: Highlights Justice Kagan’s passionate dissent, warning the ruling threatens the “very premise of constitutional democracy” and will “undermine faith in all of our branches of government.” (09:34)
  • Quote (Kagan via Litman): “Is this how American democracy is supposed to work? No one thinks that it should work this way because partisan gerrymandering threatens the very premise of the constitutional democracy…” (09:40)

In Search of Standards

• Karlan: Acknowledges Kagan’s search for a standard to judge when gerrymandering has gone "too far" but concedes there is no “sixth grade arithmetic test,” only workable guides (10:48).

3. Supreme Court Ruling on the 2020 Census Citizenship Question (13:02 – 25:13)

Case Overview

• Stern: Describes how Commerce Secretary Wilbur Ross wanted to add a citizenship question to the census, which experts agreed would suppress counting in immigrant and minority communities. Stern details the administrative “pretext”—the justification given was not the real reason. Evidence showed the rationale was “arbitrary and capricious.” (13:02–17:45)
  • Quote: “…there would be this round of redistricting in 2020 that relied on this warped census data that basically transferred power from diverse Hispanic and immigrant heavy regions to more white and rural areas. That’s the indisputable impact of a citizenship question.” (13:44)
  • The Supreme Court sends the case back, refusing the rationale provided, but not ruling out the question on principle.

Roberts’ Logic and “Better Lying”

• Litman: Argues Roberts’ real objection was the clumsiness of the deception, not the substance: “The takeaway from Roberts…is just lie better next time.” (17:45)
  • Quote (Litman): “The Chief Justice basically had to hold his nose and say, ‘Gosh, guys, can’t you do a better job at just concealing your motives…?’” (19:26)

Agency Deference and Hypocrisy

• Karlan: Points out the irony that the conservative justices distrust most federal agencies but want to grant deference to Wilbur Ross’ “blatant lying” (20:23).

The “Pretext-Building” Through-Line

• Lithwick & Karlan: Draw a parallel with gerrymandering: politicians and bureaucrats are learning to create more plausible “pretexts” for their actions to survive legal scrutiny, often masking racially discriminatory motives as mere politics (21:42–25:13).

4. The Intersection of Race, Politics, and Gerrymandering (24:01 – 25:51)

• Litman: Points out that as voting and party affiliation are highly polarized by race, what’s called “partisan” gerrymandering often means racial discrimination by another name: “you are giving legislatures a lot of cover to potentially cloak racial gerrymanders as partisan gerrymanders…” (24:46)
• Stern: Offers a concrete example from North Carolina—legislators openly admitted to maximizing Republican seats, but under the guise of partisanship, not race (25:13).

5. Comparing Supreme Court Justices Gorsuch and Kavanaugh (26:59 – 36:28)

• Litman: While emphasizing that both are very conservative and generally aligned, highlights Gorsuch’s “libertarian instincts” especially in criminal law cases and rights of Native Americans, with Gorsuch sometimes joining liberals (26:59). Kavanaugh is more “law and order,” backing prosecutors and government power.

  • Quote (Litman): “Justice Gorsuch has some real libertarian instincts that lead him to be very skeptical of the government’s ability to criminalize conduct or…regulate…So in criminal cases, Justice Gorsuch will say the government has to write statutes super clearly…” (27:12)

• Stern: Sees Gorsuch as closer to Scalia in skepticism/anger towards government overreach, Kavanaugh taking a more strategic, Kennedy-esque “moderate” posture in select procedural cases but both reliably rightward on big issues (30:05).

• Karlan: Suggests Kavanaugh stayed “under the radar” in his first term due to the contentiousness of his confirmation, contributing to a cautious term where the Court avoided several hot-button cases until the following year (31:49).

6. Next Term and Supreme Court Dynamics (32:43 – 36:28)

• “Blockbuster” Cases Coming: DACA, abortion, LGBTQ rights—all delayed through 2019, now set for decision during the 2020 election season.
  • Karlan: Notes how four justices are enough to force the Court to take any case and speculates some want “big winning issues for the president in an election year.” (33:43)
• Court’s Institutional Legitimacy: Debate continues about whether the more centrist conservatives (Roberts, Kavanaugh) are motivated by post-Kavanaugh confirmation public opinion or a broader concern for the Supreme Court’s legitimacy (35:50–36:28).

Memorable Quotes

• Stern, on gerrymandering:

  "Chief Justice Roberts’ majority opinion shut the courthouse doors…to partisan gerrymandering plaintiffs forevermore." (04:31)

• Karlan, on what’s coming next:

  “I think you're going to see coming out of the 2020 census some really amazing redistricting…as bad as the gerrymanders we've seen have been, it's entirely possible we're going to see a whole nother thing after 2020.” (08:10)

• Litman, on Kagan’s warning:

  “She talked about how it debases and devalues and dishonors our democracy and how it's really odd for the majority to say that gerrymanders are political questions that can be fixed through elections, when elections are undermined by that very gerrymandering.” (09:56)

• Karlan, on agency deference:

  “You have a bunch of justices who are not prepared to defer to agencies that have real expertise…yet they say, well, Wilbur Ross needs all this deference. It's just striking and, to some extent, quite hypocritical.” (21:22)

• Litman, on judicial honesty:

  “The Chief Justice basically had to hold his nose and say, Gosh, guys, can't you do a better job at just concealing your motives and pretending that there is a legitimate purpose here?” (19:26)

• Karlan, on hope:

  “I think we're going to save us by enforcing the Constitution and the law and by taking back the courts.” (37:50)

Important Timestamps

• Opening/Guest Intros: 00:06–01:33
• Why the Supreme Court’s decisions matter more than debates: 02:06–03:21
• Partisan gerrymandering decision explained: 03:50–11:55
• Kagan’s dissent/impact of gerrymandering: 09:34–10:34
• Census citizenship question: Details and implications: 13:02–22:25
• Connecting racial and partisan gerrymandering: 24:01–25:51
• Gorsuch vs. Kavanaugh—contrasts: 26:59–31:45
• Why big cases will hit Court in 2020 election year: 32:43–36:28

Tone & Style

The roundtable is conversational yet urgent in tone—simultaneously witty, exasperated, and scholarly. The guests blend legal analysis with pointed critique, sprinkled with humor and frank frustration over the Supreme Court’s approach, the political process, and the stakes for American democracy.

Conclusion

This episode of Amicus critically examines pivotal Supreme Court decisions on democracy and governance, particularly the barring of federal court review of partisan gerrymanders and the census citizenship question. The panel underscores an increasing judicial tolerance for pretext in government actions and warns of the erosion of judicial remedies for undemocratic practices—while also dissecting subtle ideological divides within the conservative bloc of the Court. Despite the bleak legal landscape, the panelists echo a cautious hope that accountability and legal activism still matter.

End of Summary