Amicus With Dahlia Lithwick—June 24, 2025

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

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.

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.

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."

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

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.

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.