Podcast Summary: Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: Slate Plus Bonus: Praying at the 50 Yard Line and Dunking on the Libs
Date: June 28, 2022
Host: Dahlia Lithwick
Guest: Mark Joseph Stern

Episode Overview

This bonus episode of Amicus dives into the Supreme Court decision in Kennedy v. Bremerton School District—a key religious liberty case decided in the final week of the 2021 Supreme Court term. Host Dahlia Lithwick and Slate’s legal correspondent Mark Joseph Stern unpack the significance of the ruling, which allowed a high school football coach to lead prayers at the 50-yard line following games. The discussion centers on the end of the Lemon Test, the court’s shift toward a "history and tradition" standard, and the potential consequences for First Amendment jurisprudence, particularly the separation of church and state.

Key Discussion Points & Insights

1. The Context: A Tumultuous Supreme Court Term

• The episode opens with Dahlia reflecting on the shockwaves from the recent decision overturning Roe v. Wade, noting that the Kennedy case is part of a larger trend of “eye-popping” rulings that term.
• The Kennedy case is flagged as especially consequential for its broad implications on religious freedom and government endorsement of religion.

2. Breakdown of Kennedy v. Bremerton School District

• Brief summary of the facts: Coach Kennedy insisted on leading students in prayer at the 50-yard line after football games, which led to controversy and eventually a Supreme Court case over religious rights and the Establishment Clause.

• Dahlia criticizes the majority opinion's narrative, describing Justice Gorsuch's recounting of the case events as almost surreal and sarcastically likening it to a story where odd things (like a teller “handing over money”) just inexplicably happen.

  • Memorable Quote:
    • "It’s like, I don’t know what happened. He just was on his knee at the 50 yard line praying... and weirdly, people prayed with him, including students who felt coerced into praying. And then weirdly, there was more media coverage. I don’t understand why the teller handed over the money. It makes no sense."
      — Dahlia Lithwick (01:12)

• Despite a joking tone, the hosts underscore the ruling’s real impact: the case holds major consequences for previously established boundaries between church and state in public schools.

3. The Demise of the Lemon Test

• Mark explains that the Lemon Test, long used to determine if government actions violate the Establishment Clause, is now effectively "overruled" (02:20).
  • The Lemon Test, from Lemon v. Kurtzman (1971), asked whether laws had a secular purpose, their principal effect advanced/inhibited religion, and whether they fostered “excessive entanglement” between government and religion.
• According to Mark, Justice Gorsuch claims the Lemon Test “was already dead,” even though neither the legal community nor the country was really told when or how that happened.
  • Notable Quote:
    • "You know, you didn’t know it and the country didn’t know it, but we actually quietly overruled the Lemon Test at some stage in the past 20 to 30 years. Not gonna pinpoint when, but just trust us, it happened."
      — Mark Joseph Stern (02:32)
• The so-called “reasonable observer” test—whether a law appears to endorse religion—has also been discarded, despite its long-standing use in First Amendment analysis, especially by Justice Sandra Day O’Connor.

4. The "History and Tradition" Standard

• The new majority standard: Rather than the Lemon or endorsement tests, the Court now looks to “history and tradition” to judge Establishment Clause cases.

  • This approach asks, in effect: What would James Madison have thought about this, even if the concept (like public schools) didn't exist in Madison's time?

  • Mark points out the unseriousness of this approach by noting the disconnect between historical context and modern scenarios.

  • Memorable Quote:

    • "Go back, figure out what James Madison would have wanted in public schools today, a concept that would be completely unintelligible to James Madison because that did not exist in 1791. And if James Madison was okay with it, then we’re okay with it."
      — Mark Joseph Stern (05:10)

5. The Broader Implications

• The decision signals a strong tilt of the Court toward favoring religious expression, even in state-sponsored settings like public schools.

• Mark and Dahlia agree that the shift away from neutrality threatens to create “in-groups and out-groups,” privileging certain religions and leaving others marginalized—contrary to the First Amendment’s intention.

  • Notable Quote:
    • "The number one principle of the First Amendment is that the government has to be neutral between religions and it has to be neutral between religion and non-religion.... That has been the law of the land for many years now. And again, I think it has actually proved pretty durable, except at the hands of conservative judges who hate it."
      — Mark Joseph Stern (03:32)

Memorable Moments & Quotes

| Timestamp | Speaker | Quote | | --------- | -------------- | ------------------------------------------------------------------------------------------------------------------- | | 01:12 | Lithwick | "It’s like, I don’t know what happened. He just was on his knee at the 50 yard line praying... and weirdly, people prayed with him, including students who felt coerced into praying. And then weirdly, there was more media coverage. I don’t understand why the teller handed over the money. It makes no sense." | | 02:32 | Stern | "You know, you didn’t know it and the country didn’t know it, but we actually quietly overruled the Lemon Test at some stage in the past 20 to 30 years. Not gonna pinpoint when, but just trust us, it happened." | | 05:10 | Stern | "Go back, figure out what James Madison would have wanted in public schools today, a concept that would be completely unintelligible to James Madison because that did not exist in 1791. And if James Madison was okay with it, then we’re okay with it." | | 03:32 | Stern | "The number one principle of the First Amendment is that the government has to be neutral between religions and it has to be neutral between religion and non-religion.... That has been the law of the land for many years now. And again, I think it has actually proved pretty durable, except at the hands of conservative judges who hate it." |

Timestamps for Key Segments

• 00:03 – Episode introduction; context of the term’s dramatic Supreme Court decisions
• 01:00 – Overview of Kennedy v. Bremerton; satirical critique of the majority’s presentation
• 02:20 – Detailed discussion of the Lemon Test: what it was, why it's gone
• 04:00 – Description of the “reasonable observer” test and its abolishment
• 05:10 – Explanation and critique of the Court’s new "history and tradition" test

Tone, Language & Style

Lithwick and Stern balance legal analysis with sharp, sometimes wry commentary. They mix moments of sarcasm and incredulity with careful explanation of legal standards and their shifts—conveying both the technical and emotional stakes of the Supreme Court's moves. While the tone dips into exasperation or dark humor, the goal is to highlight the deep changes underway in constitutional law.

Conclusion

This episode provides an urgent, accessible breakdown of a case signaling the Supreme Court’s dramatic shift on church-state separation. Lithwick and Stern’s discussion will resonate with listeners concerned with constitutional law, public education, and the boundaries of religious expression in America, emphasizing both the legal mechanics and the societal implications of the Kennedy decision.