Amicus With Dahlia Lithwick | “SCOTUS Made it Worse” – Episode Summary

Date: July 5, 2025
Host: Dahlia Lithwick
Guest/Co-host: Mark Joseph Stern
Theme: End-of-term Mailbag – Listener Q&A on Major Supreme Court Rulings

Episode Overview

This episode is a Slate Plus “bonus mailbag” edition of Amicus. Dahlia Lithwick and Mark Joseph Stern field incisive questions from listeners about the Supreme Court’s recent rulings at the end of the term, focusing in particular on judicial overreach, the implications of recent decisions for public education, and inconsistencies around key doctrines like the “major questions doctrine.” The episode is candid, at times biting, and unafraid to call out what the hosts see as the ideological manipulation of law by the Court’s majority.

Key Discussion Points & Insights

1. Listener Q&A on Mahmoud v. Taylor: Opt-Out Rights & Religious Coercion

[03:04 – 10:33]

• Issue: Whether allowing opt-outs from LGBTQ-themed books in public schools, as in Mahmoud v. Taylor, can be used as precedent to demand opt-outs from exposure to other materials (e.g., prayer/Christian teaching).

• Mark Joseph Stern’s Analysis:

  • Draws a direct line between the current Court’s approach and earlier school-prayer cases that recognized the coercive effect of “opt-out” regimes.
  • Warns that the Mahmoud ruling could be weaponized by parents not just against LGBTQ content, but also to challenge any material they claim is contrary to their beliefs—books about women, minority religions, civil rights, science, etc.

    "There's no limiting principles that Alito really puts in this opinion in Mahmoud...it's possible that starting now, parents could say, 'I don't want my kid to see [that],' so they're going to have to stand up and opt out." — Mark Joseph Stern [05:15]

  • Raises the specter of a chilling effect: school boards and teachers may preemptively purge any “risky” content to avoid lawsuits, severely narrowing the educational experience.

• Connection to Religious Coercion Cases:

  • Dahlia recalls that the foundational concern in earlier cases was student coercion, where minority students were stigmatized when made to opt out of prayer—now that logic is inverted:

    “Now, the argument is that the book is coercive and that these children can't...be coerced by incredibly sweet, warm, generous books about LGBTQ families… it’s a complete upending.” — Dahlia Lithwick [08:06]

• Selective Application:

  • Discussion of the invisibility of heteronormativity. Mark notes the Court does not treat books about heterosexual couples or family structures as suspect.

    “What the majority is telegraphing in...Mahmoud v. Taylor is that there's something different about LGBTQ people. There's something wrong with their relationships...That's why...I said, this is a bigoted opinion, and I absolutely stand by that.” — Mark Joseph Stern [09:09]

• Potential Expansion:

  • Concerns that the logic could reach almost any “controversial” subject, from science education (evolution) to history (the Civil War), depending on parent objections.

2. The Major Questions Doctrine—Selective Enforcement

[10:33 – 14:24]

• Listener Asks: Why wasn’t the “major questions doctrine” invoked in the CASA (birthright citizenship) case, but was used to block Biden’s student loan relief?

• Mark’s Explanation:

  • Court's Discretion: Supreme Court can decide whether to rule on procedural or merits grounds at its own discretion, often manipulating its docket to reach preferred outcomes.

    “That is all totally discretionary, and it can fade into the background, but we should always pay attention to how the court is tweaking its docket and the questions that it takes up to reach the outcome that it wants to.” — Mark Joseph Stern [12:36]

  • Major questions doctrine itself is “totally malleable,” invoked primarily when the majority seeks to restrain liberal executive actions, ignored when conservative priorities are at issue.

    “We always put [major questions doctrine] in air quotes. It's not a real thing. It's totally malleable. It's total bs. It rests on what five or six Justices see as a major question.” — Mark Joseph Stern [12:59]

  • Sees little chance it will be applied to Trump’s executive actions. Recent Kavanaugh comments suggest as much.

• Impact:

  • This selective application undermines legal consistency and, in the hosts’ view, erodes the legitimacy of the Court as an impartial legal arbiter.

3. Impact on Education and Educators

[06:41 – 08:52]

• Teachers in Limbo: A teacher listener writes in, expressing confusion and anxiety over what content they can include in class.
• Dahlia’s Response:
  • Predicts broad chilling effect, with “massive, massive pressure on teachers” and schools likely to exclude anything remotely controversial.
  • Satirically suggests the only “safe” books left might be things like “Pat the Bunny”—then notes even that could be labeled “coercive.”
  • Marks this as antithetical to the mission of public education, which should expose students to a broad world of ideas, not retreat to the safest possible content.

Notable Quotes & Memorable Moments

• On the Mahmoud decision's likely real-world impact:

  “No school district, no school is going to risk having, you know, extort lawsuit brought because some parent objects. And so what a teacher is going to be forced to do is essentially pre vet what could cause anybody any consternation.” — Dahlia Lithwick [06:56]

• On the shifting logic of public education cases:

  “Watch the trick, right? Watch the subversion there, because they're completely reversing the logic of the cases that said that kids are highly, highly susceptible to being pressured.” — Dahlia Lithwick [08:24]

• On the major questions doctrine as a political tool:

  “All it really does is help courts pick the outcome that they want to reach and then guide themselves along the way and act as if they have any legal basis for doing so.” — Mark Joseph Stern [13:37]

Key Timestamps

• [03:04] Start of substantive discussion on Mahmoud v. Taylor and opt-out rights
• [06:41] The chilling effect on teachers and public education
• [09:09] Explicit critique of the decision as bigoted
• [10:33] Listener question and discussion of the major questions doctrine
• [14:24] Transition to next question (episode cut for non-members)

Tone & Language

• Lively, forthright, sometimes sardonic (e.g., playful mockery of “safe” children’s books)
• Deeply critical of the Court’s majority, with strong language—particularly from Mark—calling out opinions as “bigoted” and doctrines as “BS”
• Serious concern for the future of public education and for judicial integrity

Conclusion

In this incisive mailbag episode, Lithwick and Stern break down how recent Supreme Court rulings, particularly Mahmoud v. Taylor, threaten to fundamentally alter the landscape of American public education and undermine both inclusivity and legal consistency. The hosts sharply critique the Court’s ideological maneuvering, warning educators and citizens alike about the profound consequences for law, society, and democracy itself.