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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.

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Transcript3 lines

[00:04]
A
Hello, Dahlia Lithwick. Here again. We are in the final week of the Supreme Court's 2021 term. And while many are still reeling from Friday's decision overturning Roe v. Wade, the court turned around Monday and issued another eye popping decision in a religious liberty case. It was Kennedy versus Bremerton School District. It's a case Mark Joseph Stern actually flagged as likely to be one of the most consequential in term. Packed with consequential cases, Slate plus members have access to a special bonus edition of Amicus where Mark and I explain why a case involving a high school football coach who insisted on leading students in prayer at the 50 yard line matters so very much. Here's a little snippet of our conversation. I just want to read this to you because it. I don't know why I'm at that place where improbable things make me laugh, cry. And here's Justice Gorsuch that says, this is my. And then, weirdly, the teller handed me money. Mr. Kennedy was alone when he began to pray. Players from the other team and members of the community joined him before he even finished his prayer. This event spurred media coverage of Mr. Kennedy's dilemma. Like, it's like, I don't know what happened. He just was on his knee at the 50 yard line praying because he kept telling television networks that that's what had to do in order to serve God. 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. Okay, okay, enough with the sarcasm, Mark. This actually has very, very significant consequences. We're being flipped because we're a little hysterical, but this has real significant consequences. So maybe just tell me. I mean, there's a whole bunch of cases that are mentioned and sort of then flipped off in this case. But maybe start with the lemon test, which is, I, I guess overruled. Although it's not overruled. It's kind of just stomped into non existence and tell us what the law was and what it is now, if you can discern what it is now, which is, I guess, I don't know.
[02:21]
B
So I think it's safe to say that the lemon test is overruled because what Gorsuch does is come in and say, hey, you know, the parties below ask us to apply the lemon test. But what they don't realize, what only I can, is, is that it's already dead. It's already gone. It's just completely, 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. And so the Lemon Test is overruled. And then also he says the offshoots of the Lemon Test are overruled. So let's talk about what this actually does. The Lemon Test is a decision from 1971 that lays out this framework for evaluating establishment clause claims. And more recently, in the 90s and 2000s, the Supreme Court sort of refined it to a standard that I think is actually really clear and quite defensible. And this was sort of Justice Sandra Day o' Connor's crown jewel of First Amendment law, which, where she said, look, the question is, does a government action or law give the appearance of endorsing religion? Because 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. So we can't have laws that appear to be endorsing religion or any particular faith because that sends a message to the community that there are in groups and out groups and that insiders who show share this religion, the one that is sort of established by these laws, that they get special treatment and everybody else is out in the cold. And 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. And so they have zeroed in on this particular test that o' Connor and the other justices used here to ask whether a law was. Was an endorsement of religion, which was. Would a reasonable observer, taking all the facts into account, see this as the government endorsing religion? And here the answer is obvious. Of course, any reasonable observer would look at what Kennedy did over the years when he was holding these prayer circles and say, duh, this is an endorsement of Christianity. This is an employee of the school and in uniform on the job, smack dab in the middle of his official duties. He is speaking on behalf of the government and he is expressing Christian prayer and thanks to a Christian God. If that's not endorsement of religion, I don't know what is. But Gorsuch gets around that problem by saying, well, you know what? That test is overruled. The reasonable observer test. Overruled. Lemon, in the ash heap of history, we have a new test. And the new test is that Du da history and tradition. 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. And magically, the majority's policy preferences align perfectly with their imagined idea of what James Madison would have wanted. And so this egregious conduct by Coach Kennedy is not just totally okay under the Establishment Clause, but it is protected by the free speech and free exercise clauses.
[06:09]
A
Slate plus members have access to the full conversation. You can find out how to join us by heading to slate.com amicusplus slate+members here ad free versions of all Slate's podcasts never hit a paywall on slate.com and they access bonus segments like this one from Amicus and a whole host of other Slate shows. More details@slate.com amicus plus and thank you. There will be more opinions this week and we will be digging through them all this Saturday on Amicus. And until then, take good care.