Podcast Summary: Amicus With Dahlia Lithwick – “SEE YOU IN COURT”

Episode Date: February 11, 2017
Host: Dahlia Lithwick
Guests: Jeremy Stahl & Mark Joseph Stern (Slate Jurisprudence Team)

Overview

This special off-week episode of Amicus breaks down the Ninth Circuit’s ruling extending a temporary restraining order on President Trump’s first immigration ban (Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States”). Only three weeks into the Trump presidency, furious and unprecedented legal activity has forced court watchers like Lithwick and guests Jeremy Stahl and Mark Joseph Stern to work overtime, sifting through chaotic arguments, judicial smackdowns, and the looming political implications for the American legal system.

Key Discussion Points & Insights

1. The Ninth Circuit’s Ruling: What Happened and Why It Matters

• The Ninth Circuit delivered a unanimous, per curiam decision upholding Judge Robart’s temporary restraining order against Trump’s travel ban.

  • The states of Washington and Minnesota challenged the ban on due process and religious discrimination grounds.
  • The panel comprised two liberal and one conservative judge, but ruled unanimously against lifting the restraining order ([03:57]).
  • The court emphasized its authority to review executive actions, strongly rejecting the Trump administration’s claims of “unreviewability.”
    • "Super critical part of the holding… they said, you know, it is basically emphatically the province of the courts and our constitutional structure… to determine whether a government action is lawful." — Mark Joseph Stern ([06:37])

• Standing and the basis of the decision:

  • The states had standing as the ban harmed their universities (students, faculty, research).
  • Due process violations formed the opinion’s backbone, though the panel noted serious concerns about religious discrimination.

• The government’s argument that courts shouldn’t review national security decisions drew strong judicial skepticism.

  • “Rather than present evidence to explain the need for the executive order, the government has taken the position that we must not review its decision at all. We disagree as explained above.” — Ninth Circuit, read by Jeremy Stahl ([07:02])

2. Layperson’s Perspective & the “Galactic Clown Show” Rollout

• Jeremy Stahl, as a non-lawyer, reflects how lay observers responded to legal complexities and government arguments:

  • The DOJ’s stance boiled down to “Trust us, the President gets to decide, and courts shouldn’t look at it.”
  • Even without legal training, the flimsiness of the government’s evidence and logic was apparent ([08:31]).

• Rollout chaos:

  • Jeremy’s on-the-ground reporting from airports showcased confusion, harm, and outright disregard of court orders by customs officials.
  • “It was implemented catastrophically. And I think that's one of the reasons why it was so easy to get these restraining orders in so many different courts, is because there was just so much immediate harm that was so visible and so obvious to see.” — Jeremy Stahl ([18:36])

3. Religious Animus and Executive Intent

• The panel discussed whether the EO was in effect a “Muslim ban.” While not the primary basis for the injunction, the court clearly entertained evidence going beyond the order’s text—including Trump’s campaign statements and Rudy Giuliani’s remarks.
  • "We have to look beyond the four corners of the executive order itself, because religious discrimination is a huge issue… you can't pretend that he didn't say these things." — Mark Joseph Stern ([11:21])
• Even the conservative judge, Richard Clifton, agreed that intent—demonstrated by campaign statements—was fair game for judicial review.

4. Legal Strategies and Government Options Moving Forward

• Could the Trump administration rewrite the order to survive legal scrutiny?

  • "My heart agrees with Eric [Posner]… that nothing the administration could do will take away the taint of Trump’s real intentions. My brain thinks that’s just untenable." — Mark Joseph Stern ([14:26])
  • Future orders would need to eliminate any religious preference language, clarify who would be affected, and limit application to new visa applicants ([15:16], [16:10]).

• The government still faces an uphill battle, as courts have shown willingness to look at real-world impact and intent.

5. The Supreme Court’s Role & Possible Outcomes

• Will the case be appealed to the Supreme Court or reheard by a larger Ninth Circuit panel?
  • Success is seen as unlikely by the panelists in any scenario—even if a conservative justice (Neil Gorsuch) is confirmed.
    • “If they choose to appeal right up to this Supreme Court, then I think the best they can hope for is a 4 to 4 split… which would in practice affirm the ninth Circuit's decision.” — Mark Joseph Stern ([21:51])
    • The “unreviewable” argument is expected to repel Justice Anthony Kennedy.

6. The Judiciary’s Legitimacy & Public Perception

• Panelists express alarm over attacks on the judiciary by the President and right-wing media.

  • “Not just for the reasons you said, but there was a PPP poll… that showed a majority of Trump supporters don’t think that he should obey what the courts say… That’s really scary.” — Jeremy Stahl ([27:29])
  • Threats against judges and rhetoric blaming courts for potential future terror attacks set a dangerous precedent for undermining judicial authority ([27:29], [29:23]).

• Mark Joseph Stern advocates for continued resistance through progressive legal action:

  • “We just have to keep plodding forward using the tools we have at our disposal. As it so happens right now, progressive states and Article 3 courts are the only tools…” ([29:23])

7. Neil Gorsuch’s “Disheartening” Comment & The Gorsuch Nomination

• Brief segment on Judge Gorsuch’s response to Trump’s attacks on judges:
  • Panelists find his “disheartening and demoralizing” remarks about Trump’s tweets to be sincere and a positive signal ([32:54]–[34:36]).
  • Debate on whether this is a genuine defense of judicial independence or political maneuvering.
    • Panelists agree it is sincere:
      • “He's not a bomb throwing culture warrior. He's not just a Republican in robes. He is a real judge. And I think that his comments were made in sincerity.” — Mark Joseph Stern ([33:39])

Notable Quotes & Memorable Moments

• On Judicial Review:
  • "Super critical part of the holding. And they said, you know, it is basically emphatically the province of the courts and our constitutional structure… to determine whether a government action is lawful." — Mark Joseph Stern ([06:37])
• On the Ban Rollout:
  • "It was implemented catastrophically." — Jeremy Stahl ([18:36])
• On Listening to Oral Argument:
  • "It's a slippery slope from that to not being able to talk to anyone at parties." — Mark Joseph Stern teasing Jeremy Stahl ([07:56])
• On Political Perception of Courts:
  • “...the judiciary is political and it’s biased and there’s no such thing as rule of law… in a deeper way, law is being undermined precisely because it looks like it’s exactly what Donald Trump wants to set up…" — Dahlia Lithwick ([26:20])
• On Neil Gorsuch:
  • "I actually took that to heart and felt like it was something that needed to be said." — Jeremy Stahl, on Gorsuch’s condemnation of Trump’s attacks ([32:54])

Segment Timestamps

• [00:03] – Introduction & Context
• [03:57] – Mark Stern Recaps Ninth Circuit Ruling
• [06:00] – Importance of Judicial Review Emphasized
• [08:31] – Layperson’s View of Arguments (Jeremy Stahl)
• [11:21] – Religious Discrimination and Review of Trump’s Statements
• [15:16] – Ways the Ban Might Be Rewritten
• [18:36] – Airport Chaos and “Clown Show” Rollout
• [21:51] – Likelihood of Supreme Court, other Appeal Options
• [27:29] – Public Opinion, Polling, and Attacks on Judiciary
• [32:54] – Gorsuch on Judicial Independence
• [36:49] – Agreement on Gorsuch’s Sincerity

Conclusion

This episode of Amicus provides a fast-paced, deeply informed, and sometimes wry look at the landmark early confrontation between the Trump administration and the federal judiciary. The conversation moves from detailed legal analysis to existential concerns about democracy, judicial independence, and the rule of law. It’s a rich primer both on the substance of the Ninth Circuit’s decision and the broader political and constitutional stakes.

Memorable tone:
Humorous, urgent, occasionally bleak—balanced by the camaraderie and expertise of the Slate jurisprudence team.