Amicus With Dahlia Lithwick | "Roberts vs. Trump"

Date: July 10, 2020
Host: Dahlia Lithwick (B)
Guests:

• Dean Erwin Chemerinsky (C), Berkeley Law
• Zephyr Teachout (A), Fordham University
• Mark Joseph Stern (D), Slate

Episode Overview

This special end-of-term edition, recorded just after the Supreme Court released its major decisions on President Trump’s financial records, digs into what these rulings mean for the separation of powers, presidential immunity, congressional oversight, religious liberty, Indigenous rights, and the legacy of Chief Justice John Roberts. Lithwick and her panel of renowned court watchers dissect the biggest cases, the justices' strategies, and the implications for American law and politics.

Major Discussion Points & Insights

1. The Trump Financial Records Cases

• Main Theme: Analysis of the Supreme Court decisions on Trump’s financial records and congressional subpoenas, and their impact on the presidency and oversight.
• Key Opinions:
  • Roberts delivers the 7-2 majorities in both key cases—rejecting absolute presidential immunity but instituting hurdles that delay any disclosures until after the 2020 election.
  • "It's hard not to see this as the Roberts grand finale of the year, where he gets to finish with two big cases with seven-two majorities that show him up as a kind of political hero against Trump." — Zephyr Teachout (00:05, 19:26)

[02:10–07:44]

• Vance Case (NY DA’s Subpoena):
  • DA Cy Vance sought Trump’s financials for a grand jury.
  • Outcome: Court rejected Trump’s claim of absolute immunity; case remanded for further litigation.
    • "Trump and his lawyers said that they should have absolute immunity from these kinds of requests. And in today’s 7:2 decision...that really audacious claim is smacked down." — Zephyr Teachout (02:42)
• Mazars Case (Congressional Subpoenas):
  • Two Congressional committees subpoenaed Trump’s financial records from Mazars and Deutsche Bank.
  • Outcome: Court vacated D.C. Circuit decision, set a new four-part test—more hurdles for Congress.
    • "There has to be a showing of special need for a congressional committee...no absolute immunity, but a heightened showing of need." — Erwin Chemerinsky (03:55)
• Implications:
  • Short-term: Trump likely shielded from immediate disclosure until after 2020 election, especially on congressional subpoenas.
  • Long-term: Validates principle President is not above the law, but future subpoenas face more judicial scrutiny.

[07:44–12:32]

• Strategic "Chess" by Roberts:
  • The decisions both rebuff Trump’s grandest claims and introduce balancing tests favoring delay.
    • "Roberts has enforced the separation of powers here...but also handed Trump some significant short-term victories." — Mark Joseph Stern (06:15)
• Impact on Oversight:
  • Additional hurdles weaken congressional oversight powers.
    • "The Supreme Court has weakened the ability of Congress to get records." — Erwin Chemerinsky (10:08)
    • "It gives an enormous power to the judiciary and takes away congressional power." — Zephyr Teachout (10:48)
• Judicial Supremacy:
  • The court positions itself as the ultimate referee in political disputes between branches.
    • Notable moment: "[The Court] is just so wonderful and splendid. So long as it's being led by John Roberts, how could it ever pose separation of power problems?" — Mark Joseph Stern (12:32)

[15:12–19:26]

• Contrast Between Vance and Mazars Cases:
  • Vance: Clear, President not immune from state criminal process.
    • "Grand jury has the right to every person’s evidence. The President has no special exceptions from that." — Erwin Chemerinsky (15:12)
  • Mazars: Messier interests, harder balancing.

[19:26–24:42]

• Politics of the Decisions:
  • The optics of Trump-appointed justices (Gorsuch, Kavanaugh) siding against Trump, though not fully embracing the majority’s doctrine.
    • "It's important to note these cases weren't unanimous...I'm thankful they’re not 5, 4." — Erwin Chemerinsky (16:53)
  • Teachout and panel stress the decisions represent Roberts’s careful management of legitimacy and public perception.
  • Would public access to Trump’s records matter?
    • "Everything matters in ways that we don't know...It is absolutely the public's right to know that." — Zephyr Teachout (23:34)
    • "Donald Trump has fought so hard to keep this information secret. I've got to believe there's a reason..." — Erwin Chemerinsky (24:42)

2. The Religious Liberty Cases

• Main Theme: How the Court expanded religious rights at potential cost to civil rights and separation of church and state.

[24:58–33:44]

• Our Lady of Guadalupe v. Morrissey-Berru:
  • Religious schools can fire teachers—exempt from anti-discrimination laws, even for non-ministerial staff.
    • "Any religious school can discriminate with impunity...free exercise of religion shouldn’t give a right to hurt others." — Erwin Chemerinsky (26:35)
• Little Sisters of the Poor v. Pennsylvania:
  • Upheld Trump Admin’s broad religious/conscience exemptions to contraceptive coverage.
    • Note: Still could be challenged under administrative law.
• Espinoza & Ministerial Exception Tension:
  • States must fund religious schools (Espinoza) but cannot enforce their own nondiscrimination statutes on them (Ministerial Exception).
    • "If this is not an example of a court that only cares about the free exercise of some and ignores the rights of others, I don’t know what is." — Mark Joseph Stern (30:05)
• Dissenters' Views:
  • Blistering dissents by Justices Ginsburg and Sotomayor underscore the "invisible people" whose rights are being eroded.

[36:13–40:50]

• The Liberal Divide:
  • Breyer and Kagan often join conservatives in religion cases; Ginsburg and Sotomayor consistently dissent.
    • "Breyer has never been a champion for the wall that separates church and state." — Erwin Chemerinsky (36:13)
    • "I do worry about the power of abstract argument and the dominance of abstraction in some of these cases." — Zephyr Teachout (37:59)
• Strategic Alliances:
  • Some “horse trading” occurs among justices on strategic grounds.
    • Kagan positions herself as a moderate on religion, to retain a persuasive voice when the Court shifts rightward.
    • "[Kagan] cares a lot about presenting herself as a moderate on these particular issues...so she can really spank the other side hard when it goes too far." — Mark Joseph Stern (39:05)

3. Tribal Sovereignty — McGirt v. Oklahoma

• Main Theme: The Court’s momentous recognition of Native American reservation sovereignty.

[40:50–45:17]

• Ruling: Much of eastern Oklahoma remains a Creek reservation.
  • "[Gorsuch:] If Congress wishes to withdraw its promises, it must say so. Unlawful acts performed long enough...are never enough to amend the law." — Gorsuch, read aloud by Dahlia Lithwick (42:27)
• Gorsuch’s Role:
  • As a Westerner with a record of defending tribal rights, Gorsuch authors majority.
    • "He writes about tribal rights the way that Justice Kennedy wrote about gay rights." — Mark Joseph Stern (43:37)
  • Sets a new benchmark for the Court’s approach to Indian law.
• Future Implications:
  • Other treaties may be similarly interpreted; Congress retains the power to change statutes.

4. Reflections on the 2019–2020 Supreme Court Term

[45:17–48:47]

• Roberts as Political Strategist:
  • Managed Court’s image, avoiding 5-4 conservative-liberal splits in key cases.
    • "John Roberts is masterful at making both sides feel like they won something and he threaded the needle brilliantly this entire term." — Mark Joseph Stern (46:12)
    • "Roberts is a deeply political and deeply skilled political actor. And I think this term was about shoring up his power and the legitimacy of the institution of the court." — Zephyr Teachout (46:51)
• The "Roberts Court":
  • Roberts emerges as both Chief and pivotal swing vote across ideological lines.
    • "He has occupied not just the center seat but his prominent role as any chief justice we’ve seen, maybe at least since Earl Warren." — Erwin Chemerinsky (48:47)

Notable Quotes & Key Moments

• On Roberts' balancing act:
  • "Maybe not everything he wants, but there's definitely at least a little bit of chess or at least checkers going on here... He’s also handed Trump some significant short-term victories." — Mark Joseph Stern [06:15]
• On judicial supremacy:
  • "It gives an enormous power to the judiciary and takes away congressional power." — Zephyr Teachout [10:48]
• On religious liberty decisions:
  • "Any religious school can discriminate with impunity... Now the Supreme Court has given religious institutions exemptions from those important laws that prohibit discrimination." — Erwin Chemerinsky [26:35]
• On invisible people in these cases:
  • "These teachers were just trying to make a living, who teach algebra and didn't realize...they were actually conveying the message of the Holy Spirit. These cases are perverse." — Mark Joseph Stern [30:05]
• On the McGirt decision and Gorsuch:
  • "What Gorsuch wrote about tribal rights...is a very powerful idea that has been unfortunately foreign to the Supreme Court for many years." — Mark Joseph Stern [43:37]
• On the legacy of the term:
  • "I think we saw it truly is the John Roberts court...He has occupied not just the center seat but his prominent role as any chief justice we’ve seen, maybe at least since Earl Warren." — Erwin Chemerinsky [48:47]

Segment Timestamps

| Segment | Timestamps | |----------------------------------------------|------------------| | Trump Financial Cases Overview | 00:05–12:32 | | Judicial Power & Congressional Oversight | 10:08–15:50 | | Dissent, Justices' Alignments | 15:50–24:42 | | Religious Liberty Decisions | 24:58–39:05 | | Liberal Coalition Dynamics | 36:13–40:50 | | McGirt v. Oklahoma & Gorsuch’s Role | 40:50–45:17 | | Rapid-Fire Reflections on the Term | 45:17–48:47 |

Tone and Takeaways

The episode mixes deep expertise, lively debate, and occasional humor as the panelists dissect the complexity and consequences of the Court’s term. Central throughout is the sense that Chief Justice Roberts—pragmatist, tactician, and image manager—has shaped the trajectory not just of the Court but of the limits of executive power, congressional oversight, religious liberty, and constitutional rights.

For listeners: If you haven’t followed every legal headline, this episode distills the 2019–20 Supreme Court term’s biggest cases, the Roberts Court’s evolving philosophy, and why these decisions will echo for years.