Amicus With Dahlia Lithwick: SCOTUS Greenlights Trump, Gaslights America

Date: December 6, 2025

Overview

This episode of Amicus grapples with a tumultuous week in American law and politics, focusing on how the current Supreme Court is enabling anti-democratic and authoritarian trends, particularly in light of recent major decisions:

• The Court’s willingness to entertain (or facilitate) the rollback of birthright citizenship as enshrined in the 14th Amendment
• The approval of Texas Republicans’ racially gerrymandered congressional maps
• The looming threat to what remains of campaign finance law
• The erosion of the military’s legal and ethical guardrails under Trump’s administration, with special guest Malcolm Nance providing a grave warning about the implications of lawless military orders

Lithwick is joined by Slate’s Mark Joseph Stern and, later in the show, by veteran and intelligence expert Malcolm Nance.

Key Discussion Points and Insights

1. A “Fact-Free” and Destabilizing Week in Law and Politics

[01:12–03:55]

• Lithwick opens with palpable frustration and concern: Trump’s overt racism, the Supreme Court greenlighting racial gerrymanders in Texas, ICE scooping up US citizens, conservatives gaslighting the public.
• The episode’s central question: “Which institutions will stand up to all of this, and which will capitulate?”
• The episode will cover not just the legal details but the broader impact on American institutions, democracy, and the rule of law.

2. Supreme Court Takes Up Trump’s Assault on Birthright Citizenship

[03:55–08:24]

• Mark Joseph Stern: SCOTUS has granted cert in Trump v. Barbara, a case that gives the Court a clear opportunity to decide if Trump can end birthright citizenship for children of immigrants.
  • Trump’s executive order—intended to end birthright citizenship—violates the 14th Amendment, a century of precedent, and basic statutory law.
  • Lower courts have roundly rejected Trump’s policy, making this case a “clean shot” at the core constitutional question.
  • Stern remains “cautiously optimistic” the Court will uphold the 14th Amendment—if only as a performance of neutrality.

Memorable Quote:

“We are about to be told by the U.S. Supreme Court that there are sober, meritorious arguments on both sides”—Dahlia Lithwick [05:30]

3. SCOTUS Endorses Texas’s Racial Gerrymander

[08:24–16:56]

• The Decision:

  • The Court revived a Texas congressional map designed to benefit Republicans, overruling a district judge (appointed by Trump) who had meticulously documented the map’s racially discriminatory intent and effect.
  • The unsigned majority opinion offered only two paragraphs of reasoning.

• Justice Alito’s Concurrence:

  • Blames Black and Hispanic voters for supposed partisanship, defending Texas Republicans’ motives as non-racial.
  • Mark Joseph Stern: This is “projection and gaslighting,” painting minorities as manipulative partisans while shielding white conservative politicians from scrutiny.

Memorable Quote:

"The mostly white politicians who actually drew this gerrymander get the presumption of good faith. ... But the racial minorities who challenged the gerrymander ... get treated like bad faith partisans." —Mark Joseph Stern [11:45]

4. The Manipulation of Legal Principles to Entropy Democracy

[13:02–16:56]

• Lithwick and Stern deconstruct the ‘Purcell Principle’:
  • The Court invoked this principle (“don’t change election rules on the eve of an election”) despite the election being nearly a year away; Texas’s own legal gamesmanship is ignored.
  • The effect is to protect GOP gerrymanders by shielding illegal election laws from judicial remedy, making federal courts powerless to stop even blatantly racist election rules.

Memorable Quote:

“In practice, what it means right now in our neo Jim Crow era is that red states ... will get a free pass to gerrymander racial minorities into oblivion. Even if their maps are blatantly illegal and unquestionably racist, courts will be powerless to stop them.”—Mark Joseph Stern [15:57]

5. The Supreme Court’s Shadow Docket and Justice Kagan’s Dissent

[19:03–22:35]

• Lithwick: Highlights how the Court’s use of so-called “elastic” principles undermines the work of lower courts, even when those judges are themselves Republican appointees.
• Stern: Praises Justice Kagan’s dissent for calling out the majority’s disregard for the facts and law, giving concrete examples of how the Supreme Court simply ignored the district’s court’s fact finding (“flat out impermissible under the law as it stood on Thursday”).

Notable Quote:

“I admire the outrage that sort of seeps off the page in her dissent.” —Mark Joseph Stern [20:51]

6. Next Up: The Last Gasp of Campaign Finance Reform

[22:35–29:20]

• Mark Joseph Stern: Explains the coming case (National Republican Senatorial Committee v. Fe) and how it seeks to remove the last limits on parties spending unlimited sums in coordination with candidates.
  • The result would be to legalize essentially all forms of “soft money” influence.
  • Even after Citizens United, there are real differences between supposedly “independent” super-PACs and the direct influence of parties; this case would erase that barrier.
  • The precedent came after the Watergate-era Dairygate scandal; Stern expects the Court to overturn it in line with its hostility to campaign finance restrictions.

Notable Quote:

“The voices of ordinary people who want to participate in what remains of America's democracy are just going to get drowned out even more by the mega donors ...” —Mark Joseph Stern [28:55]

7. The Shadow of the Unitary Executive: Trump v. Slaughter

[29:20–31:05]

• The Court will soon hear Trump v. Slaughter, which could allow any president to fire virtually all independent federal officials and exert king-like control over the executive branch.
  • Decision could enable Trump to purge disfavored officials and wield agencies as tools of personal power.

8. The Military’s Lawless Turn: Boat Strikes and Unchecked Command

[33:36–66:17]

Featuring Malcolm Nance

• Malcolm Nance gives a historical and legal crash course on why US military personnel are required to disobey illegal orders—even from the president.
  • Traces the evolution of military law and ethics (from George Washington’s rules through My Lai and Nuremberg).
  • The Uniform Code of Military Justice and Geneva Conventions make clear: You do not shoot shipwrecked mariners; you do not slaughter civilians.
  • The adoption of “war on drugs 2.0” logic blurs the line between combatants and criminals, stretching the definition of “terrorist” out of all meaning.

Notable Quote:

“The first example is you do not shoot shipwrecked mariners. ... That is the primary example of a war crime listed in the Uniform Code of Military Justice.” —Malcolm Nance [41:38]

• On Pete Hegseth’s Role as Secretary of Defense:
  • Hegseth’s disregard for military law (“Jagoffs”) and contempt for legal checks create profound risk for troops and national honor.
  • Lowering legal standards does not make US forces safer; it emboldens adversaries and exposes US service members to greater danger and possible war crimes prosecution.
  • Trump and Hegseth’s collective “solution” is inspired by the movie Clear and Present Danger, not real law.

Memorable Exchange:

Lithwick: “So it’s the authorization of the use of Tom Clancy that is in fact the military...”
Nance: “There is no legal basis for anything he’s doing other than Tom Clancy did it. ... That’s where Trump got this idea. I’m not joking.” [52:15]

• Military Ethics and Chain of Command
  • Nance emphasizes the importance of senior NCOs and the institutional culture of resisting unlawful orders at all levels.
  • The current structure sidelines these checks in favor of “war fighters” making split-second, legally and morally dubious decisions.

Memorable Quote:

“A government that’s led by a clown isn’t a government. It’s a circus. And you are watching the circus.” —Malcolm Nance [62:17]

• International Implications
  • When the US commits war crimes, it endangers its troops worldwide by signaling to adversaries that similar conduct is permissible.

Notable Case:

Nance recounts a 2004 atrocity in Iraq—US soldiers’ war crime prompted enemy reprisal murders, showing direct, deadly consequences of abandoning military law. [65:03]

Notable Quotes & Memorable Moments (with Timestamps)

• On how quickly radical arguments become mainstream law:

  “That which was unthinkably bonkers a year and a half ago is now going to the Supreme Court.” —Lithwick [05:30]

• On the meaning of SCOTUS’s gerrymander ruling:

  "It feels like this is just the court full on, mask off, pants down, throwing in for Trump, throwing in for Greg Abbott." —Lithwick [13:25]

• On the Purcell Principle’s expansion:

  “The Purcell principle, much like Christmas, comes earlier and earlier and earlier every year. And trotting it out in the first week of December, the year before an election is like really like pumpkin spice of all legal principles. Well done, well done, Justice Alito.” —Lithwick [19:20]

• On military law and illegal orders:

  “A US Service member is obligated to execute all orders given to them by superior officers in the chain of command. All lawful orders.” —Malcolm Nance [42:20]

Important Segment Timestamps

• [01:12] — Lithwick frames the episode’s urgency and topics
• [03:55] — Trump v. Barbara and the threat to birthright citizenship
• [08:24] — Texas gerrymander ruling and Alito’s concurrence
• [13:02] — Expansion of the "Purcell Principle"
• [19:03] — Justice Kagan’s dissent called a “clinic” in dissent writing
• [22:35] — NRSC v. Fe: campaign finance law faces extinction
• [29:20] — Preview: SCOTUS and the unitary executive
• [33:36] — The Hegseth boat strike scandal, legal and historical context for illegal military orders (Malcolm Nance interview)
• [41:38] — “Do not shoot shipwrecked mariners:” UCMJ and Geneva Conventions
• [52:15] — “Authorization of the use of Tom Clancy as military policy”
• [62:17] — “A government ... led by a clown isn’t a government. It’s a circus.”
• [65:03] — Real consequences: How atrocities endanger American troops

Conclusion

This episode of Amicus was a warning, a lament, and a call to attention. From the Supreme Court to the military, institutions are being bent toward antidemocratic ends—sometimes via legal sleight of hand, other times by simply casting aside ethics and law. Lithwick and Stern give listeners a trenchant, urgent survey of the legal landscape, while Malcolm Nance provides a dark but essential insight into the dangers of a military untethered from law.
If you care about the rule of law, voting rights, military ethics, or simply the trajectory of American democracy, this episode is essential listening.