Amicus With Dahlia Lithwick | Law, Justice, and the Courts
Episode: Sneak Preview: SCOTUS Made it Worse
Release Date: July 5, 2025
Host: Dahlia Lithwick
Guests: Mark Joseph Stern

Introduction

In the preview episode of Amicus, Slate Podcasts delves into the recent Supreme Court decisions that have stirred significant debate and concern among educators, parents, and legal scholars. Hosted by Dahlia Lithwick and featuring Mark Joseph Stern, the discussion centers on the implications of the Mahmood v. Taylor case and the contentious major questions doctrine as applied in recent rulings.

Mahmood v. Taylor: Implications for LGBTQ Education

The episode opens with Dahlia and Mark addressing listener questions about Mahmood v. Taylor, a pivotal case concerning the inclusion of LGBTQ-themed books in public school curricula.

Listener Question by Valda Winslow (00:29):
"Dear Amiki, ... do you think that [Mahmood v. Taylor] could be a setup to be used in the Ten Commandments cases or prayer or other religious teaching in the public schools cases? In other words, can those advocating for the Christian majority now argue that anyone in the minority should be permitted to opt out and cite this case as precedential?"

Mark Joseph Stern's Analysis (03:04):
Mark elaborates on the potential ripple effects of the decision, emphasizing that the court's stance could extend beyond LGBTQ issues to other progressive educational topics. He suggests that:

"It's quite possible that those parents who don't want their kids discussing those topics or learning about them could say, sorry, they can't participate in this lesson on the Civil War because we think that the south should have won. Sorry, they can't learn this lesson about evolutionary biology because we think Darwin was the devil and evolution is false."
(03:45)

Key Insights:

• Stigmatization Concern: The ruling in Mahmood v. Taylor raises fears that requiring students to opt out of certain educational content can lead to stigmatization, reversing the court's previous stance on coercion in school prayer cases.
• Broader Educational Impact: There's a potential for a wide range of subjects—from women's roles in history to religious studies—to be targeted under the same principles.
• Precedential Use in Religious Cases: The decision might be leveraged in cases involving religious teachings in schools, such as the display of the Ten Commandments, leading to further entrenchment of specific ideological views.

The Chilling Effect on Educators

Dahlia and Mark discuss the tangible impact of these legal decisions on teachers and educational institutions.

Listener Reflection by Michelle (06:41):
Michelle, a teacher, expresses her anxiety over navigating potential lawsuits and administrative pressures.

Mark Joseph Stern's Response (06:55):
Mark highlights the inevitable "chill" that such rulings impose on educators:

"What a teacher is going to be forced to do is essentially pre vet what could cause anybody any consternation."
(07:10)

Dahlia's Commentary (08:15):
She underscores the reversal of established legal principles, noting:

"This completely upends it. Right 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."
(08:50)

Key Insights:

• Preemptive Censorship: Educators may feel compelled to restrict educational materials preemptively to avoid legal challenges, stifling academic freedom.
• Reversal of Legal Logic: The court's decision flips the traditional view on coercion in education, labeling inclusive materials as potentially harmful.
• Impact on Public Education: Such legal precedents threaten the foundational goals of public education by promoting a singular ideological perspective.

Major Questions Doctrine and Supreme Court's Discretion

The conversation shifts to the major questions doctrine, with listener Paul Michael Davis posing a critical question about its inconsistent application.

Listener Question by Paul Michael Davis (10:33):
"Can you explain why the major questions doctrine ... wasn't invoked when deciding the CASA birthright citizenship case, but it was used in overturning student loan relief under Biden?"

Mark Joseph Stern's Analysis (11:08):
Mark criticizes the doctrine's malleability and selective application:

"It's so malleable that 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."
(13:20)

Dahlia's Addition (14:25):
Dahlia agrees, further questioning the consistency:

"I actually wanted to add that it occurred to me as you were talking, I went back and looked at some Richard Scarry, like ridiculously heteronormative. There's nothing. Nothing survives."
(14:30)

Key Insights:

• Selective Application: The major questions doctrine appears to be applied inconsistently, potentially based on the justices' preferences rather than objective legal standards.
• Procedural vs. Merits: The Supreme Court may choose to address procedural aspects like standing over substantive issues, influencing the case's outcome.
• Critique of the Doctrine: Dahlia and Mark argue that the doctrine lacks a solid legal foundation and is used to justify predetermined outcomes, undermining judicial impartiality.

Conclusion

The sneak preview of Amicus provides a critical examination of recent Supreme Court decisions and their far-reaching impacts on education, religious expression, and legal doctrines. Dahlia Lithwick and Mark Joseph Stern articulate deep concerns about the erosion of inclusive education and the judiciary's role in shaping societal norms. The discussion underscores the need for vigilance and advocacy to protect the integrity of public education and uphold diverse perspectives within the legal framework.

Notable Quotes:

• Mark Joseph Stern (03:04):
  "From here on out, it's quite possible that those parents who don't want their kids discussing those topics or learning about them could say... 'I don't want my kid to see that, so they're going to have to stand up and opt out.'"

• Dahlia Lithwick (08:50):
  "This completely upends it...It's like watch the trick, right? Watch the subversion there, because they're completely reversing the logic of the cases..."

• Mark Joseph Stern (13:20):
  "It's so malleable that 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."

Stay Tuned:
For a more in-depth analysis, including the full conversation and additional insights, subscribe to Slate Plus to unlock exclusive episodes and ad-free listening. Visit slate.com/amicusplus or find Amicus on Apple Podcasts and Spotify.