Sneak Preview: The Supreme Court's Worst Move Since Trump Returned to Office

Summary

Amicus With Dahlia Lithwick—June 24, 2025

Episode: Sneak Preview: The Supreme Court's Worst Move Since Trump Returned to Office

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Episode Overview

In this incisive episode of Amicus, host Dahlia Lithwick and legal journalist Mark Joseph Stern break down the Supreme Court’s recent, momentous shadow docket decision in the case DHS v. Dvd. The ruling, which allows the Trump administration to deport migrants to so-called third countries without due process protections, is discussed for its legal gravity, lack of transparency, and sweeping implications—both for the rights of migrants and for the balance of power between the branches of government. Lithwick and Stern analyze how the Court’s use of the shadow docket sidelines Congressional protections and effectively insulates the executive branch from judicial scrutiny—raising concerns about democracy, accountability, and America's treaty obligations.

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Key Discussion Points and Insights

1. Background of DHS v. Dvd (01:40–02:34)

• Mark Joseph Stern explains the Trump administration’s goal: deporting migrants to “third countries”—often places they've never been, including dangerous, war-torn nations like Libya and South Sudan.
• The administration claims authority to deport individuals anywhere, without notice or chance for the migrant to contest on grounds of facing torture.
  • Quote (01:50):
    Stern: "The government specifically wants to send them to violent countries where they are likely to face personal violence, torture and death..."

2. District Court Intervention (02:34–03:24)

• Judge Brian Murphy issued an injunction, requiring the government to:
  • Give migrants notice of their destination country
  • Provide an opportunity to object if they would face torture
• This was described as “basic due process” and aligned with U.S. obligations under domestic law and international conventions.

3. The Supreme Court's Shadow Docket Decision (03:24–04:33)

• The Supreme Court’s per curiam opinion offered no reasoning and did not disclose the vote breakdown, merely lifting the injunction.
  • Justice Sotomayor issued a "furious but despondent" dissent.
• The lack of explanation leaves lower courts and the public confused and unable to understand the rationale.
  • Quote (04:33):
    Lithwick: "The court has one job. Show your work...so the litigants understand what happens."

4. Legal and Human Implications (05:26–07:22)

• Mark Joseph Stern details seismic consequences:
  • Migrants lose almost all due process rights if found deportable by an immigration judge.
  • U.S. obligations under the Convention against Torture are "effectively nullified."
  • The administration can deport individuals to countries where they risk torture—without notice or an objection process.
  • The ruling surpasses a mere “narrow case about due process”—it is about U.S. willingness to prevent torture and comply with international obligations.
  • Quote (06:32):
    Stern: "This decision just neutralizes all of that, because the United States has agreed as a party to this convention not to deport people to places where they face torture...All of that has now just been undercut and essentially stripped out of the law..."

5. Power Dynamics and the Shadow Docket (07:22–10:13)

• Lithwick and Stern underscore how the Supreme Court, via the shadow docket, is transferring Congressional and judicial checks on executive power to the presidency, without explanation or public scrutiny.
  • The maneuver bypasses standard procedures for full, reasoned decisions.
• Stern laments the media’s struggle to cover these "shadow" cases and the alarming pattern where the majority always privileges the president with little regard for harm to other branches, vulnerable individuals, or Congressional statutes.
  • Quote (09:06):
    Stern: "...for some unexplained reason, because all of it is unexplained on the shadow docket, the conservative justices just seem to think that all these factors permanently flow to the president and in favor of the executive branch. Never to Congress, never to the parties facing grievous harm, never to the public..."
• This lack of transparency makes critique difficult, as there is no majority opinion to dissect, only hypotheticals to refute.

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Notable Quotes & Memorable Moments (with Timestamps)

• Lithwick on the Court’s duty (04:33):
  "The court has one job. Show your work. Show your work so that the district court judge understands what happens, so that the country understands what happens, so the litigants understand what happens, and also so that the dissenters can understand what happened."

• Stern on the consequences for U.S. law and migrants (06:32):
  "This decision just neutralizes all of that, because the United States has agreed as a party to this convention not to deport people to places where they face torture...All of that has now just been undercut and essentially stripped out of the law..."

• Lithwick on the courts' conduct (07:22): "We're kind of getting used to that. The court also throws Congress under the bus again. Right, Because Congress has ratified a law that the court just passed, disregards."

• Stern on the shadow docket’s bias towards the president (09:06): "Never to Congress, never to the parties facing grievous harm, never to the public, which is seeing the work of Democratic representatives get erased, only to the executive branch. They're the ones who always get the benefit of the doubt. The president is always the one who faces irreparable harm. Nobody else matters."

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Important Segments & Timestamps

• [01:40] — Background on the Trump administration's deportation policy
• [02:34] — District court ruling and the due process injunction
• [03:24] — Supreme Court’s shadow docket order and lack of reasoning
• [05:26] — Immediate and broad legal consequences spotlighted
• [07:22] — Discussion of the broader institutional, democratic fallout
• [09:06] — Analysis of shadow docket’s persistent tilt toward presidential power

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Overall Tone & Takeaways

• The episode’s tone is urgent, frustrated, and cautious—a blend of legal exasperation at the Court’s opacity and grave concern for the people affected.
• Both Lithwick and Stern call attention to the erosion of transparent, reasoned jurisprudence, describing the Court’s actions as both dangerous and undemocratic.
• The episode closes with a plea for vigilance over these silent but impactful moves made by the judiciary in cases that rarely make headlines, but fundamentally reshape American due process and the separation of powers.

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For those seeking comprehensive legal insight into the Supreme Court’s changing behavior post-Trump and its immediate, often underreported, impact on justice, this episode is essential listening.

Transcript

[A]

I'm Dahlia Lithwick. This is Amicus Slate's podcast about the courts, the law and the Supreme Court. While we continue to wait breathlessly for the Justices to hand down briefed and argued cases in the coming week so that they can wrap up the term as they do every other, the fact is that this term is like no other. And shadow docket decision that came down on Monday without fanfare, without information about who even voted in the majority, and without any reasoning was a decision like no other. So we are popping up in peak opinionpalooza season for a bit of shadowpalooza. This was a third country rendition case that is as seismic as anything we are waiting to get in the days to come, with implications that pretty much dwarf much of the merit stock it it's not just that Monday's decision will have massive impacts on thousands of people who just lost vitally important constitutional and statutory protections. It's that the majority of the Supreme Court is telegraphing crystal clear signals about the force of other courts orders and the ways in which they have created a presidency that is pretty much immune from judicial oversight. My co host Mark Joseph Stern is popping up with me to talk over DHS v. Dvd, which dropped into the ether late Monday afternoon. Hi Mark.

[B]

Hi Dalia.

[A]

Mark, maybe let's start with the sort of slightly weedy background of this case. What was the Trump administration attempting to do here?

[B]

So the Trump administration was trying to deport migrants to so called third countries, which are places where the migrant has never lived, often has never stepped foot in. And the government specifically wants to send them to violent countries where they are likely to face personal violence, torture and death, including South Sudan and Libya. Now the migrants being targeted have been deemed deportable by an immigration judge, but the Trump administration claims that because they can be deported somewhere, that the government has the power to deport them almost anywhere and to do so without giving them notice of where they will be sent, an opportunity to object that if they are sent there they will face torture.

[A]

And can you tell us how the district court judge in this case, Judge Brian Murphy, responded to this effort?

[B]

So Judge Murphy issued an injunction that required just some basic due process protections for these migrants who face deportation to third countries. He said correctly that it is illegal to deport migrants to a place where they face torture. And so he required the government to give them notice that they will be deported to a particular country and then an opportunity to object on the grounds that they'll face torture there. That is very basic stuff. It was not going to seriously gum up the works of deportations. It would simply ensure that migrants had due process rights to say, it is illegal for you to send us to this country where we've never been and where we may well be tortured and killed.

[A]

So that's an absolutely monumental decision. Can you tell us what reasons the Supreme Court, in this per curiam opinion, gave for halting Judge Murphy's injunction that would prevent the Trump administration from sending immigrants without any due process, without notice, to countries where they may, in fact, face torture and death?

[B]

The Supreme Court gave no reasons whatsoever. The Supreme Court simply lifted the injunction and did not bother to provide us with a word of reasoning. So we have to guess. We simply have to take stabs in the dark about why the court did this. And we also don't really know exactly who joined the majority because this is a shadow docket decision. Justices aren't obligated to reveal their vote. So we're assuming that all six conservative justices joined with this majority, but we don't know that for sure. It's possible that one might have dissented privately. What we do know is, is that all three liberal justices dissented quite fiercely in an opinion by Justice Sotomayor that seems not only furious but despondent about what the court has signaled in this case.

[A]

And I want to be really clear about a thing that we say a lot, but I want to say it as explicitly as I can. The court has one job. Show your work. Show your work so that the district court judge understands what happens, so that the country understands what happens, so the litigants understand what happens, and also so that the dissenters can understand what happened. And as you just said, we have a lengthy dissent from Justice Sotomayor, dissenting from a few technical sentences in a one paragraph unsigned order with no reasoning. So we don't know why the court did what it did. We know that Sotomayor's kind of trying to guess. She details what is going to happen in her dissent. Can you explain what is going to happen now that this injunction has just been lifted magically without reasoning?

[B]

Yeah. So two things. First, this order by the Supreme Court strips migrants of their due process rights almost entirely. If they're facing these deportations. As long as an immigration judge has said they can be deported somewhere, the Trump administration can now deport them almost anywhere it likes, including to dangerous countries, and doesn't have to give them notice or an opportunity to object. It can just throw them on a plane, and the next thing they know, they're being booted off in a country in the throes of a civil war. Second, this decision effectively nullifies the Convention against Torture, which Congress has ratified and which Congress has implemented in a series of federal statutes and regulations. This decision just neutralizes all of that, because the United States has agreed as a party to this convention not to deport people to places where they face torture. To go give individuals an opportunity to show that they may face torture in another country, to respect their objections, and to refrain from sending them to a place where they might face torture. All of that is clear as day in the law. And all of that has now just been undercut and essentially stripped out of the law because the Trump administration gets to do everything at once now. It gets to deport these individuals to places where they face torture. It gets to deny them even the opportunity to object or even notice that they're being sent to a particular country. It gets to defy this really fundamental protection that the United States and most other countries in the world have all agreed to and implemented. And so it's a mistake to only view this as a narrow case about this one class of immigrants or a narrow case about due process. This is also about torture and whether we will stand up to our obligations to prevent it and to ensure that we are not condemning people to hideous brutality and death. And the Supreme Court has just ensured that the Trump administration can defy those obligations freely, without consequence.

[A]

I want to flag a couple of things. One, you just said this, and I think it's really important. It's not just that the court throws the district court judge and his injunction under the bus. We're kind of getting used to that. The court also throws Congress under the bus again. Right, Because Congress has ratified a law that the court just passed, disregards. But I think that there's another really profound dynamic that is happening, and it kind of, it's about optics again. And it's this dynamic that you and I have been talking about a lot on the show, which is it's opinion season, and we have an entire apparatus of how we handle big merits decisions in June. We know how to do that. This is a, a well oiled machine with a lot of ambiguity about when decisions are coming down. But nevertheless, we know how to think about these merits doc decisions. But the real action happening this term, especially in these Trump cases, and I would say in these existential Trump cases, happens on the shadow docket where the court doesn't even bother to explain itself. And then it is fundamentally scooping up powers reserved to Congress, reserved to the courts shoveling over to the president without explication. And this is the kind of stuff that doesn't make headlines because the headlines cases are going to be the ones that are, you know, on stage at the Supreme Court this week.

[B]

I think this is a huge problem that, frankly, we in the press haven't necessarily figured out how to cover well. And I also just want to hit on a point that I've been beating over and over again on this podcast, which is that in the shadow docket cases, the court does not have to do real law and often doesn't. The court does not have to say this is the right answer and this is what all the branches must respect. Instead, the court gets to weigh all of these kind of squishy factors, including equity, which is how courts craft emergency relief that's considered fair and just and stuff like irreparable harm. And for some unexplained reason, because all of it is unexplained on the shadow docket, the conservative justices just seem to think that all these factors permanently flow to the president and in favor of the executive branch. Never to Congress, never to the parties facing grievous harm, never to the public, which is seeing the work of Democratic representatives get erased, only to the executive branch. They're the ones who always get the benefit of the doubt. The president is always the one who faces irreparable harm. Nobody else matters. And they don't even bother to tell us why that is, leaving us to guess and I think making it very difficult to even critique what the court is doing, because without a majority opinion to kind of pick apart, we have to hypothesize the reasons that the court's doing this and then refute those, which is surreal and kind of crazy.

[A]

Making when you get to the place where the shadow docket is deciding questions that the Trump administration deems an emergency, and it's just Slate plus members can access our conversation in full right now. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or visit slate.comamicus+ to get access wherever you listen. We will be back with your regularly scheduled Amicus episode on Saturday morning. Until then, take good care.