Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: The Many Compromises of Elena Kagan Host: Dalia Lithwick Release Date: June 21, 2025

Introduction

In this episode of Amicus, Slate's podcast dedicated to exploring the intricacies of the law and the Supreme Court, host Dalia Lithwick delves deep into the recent Supreme Court decisions and the surprising role of Justice Elena Kagan. The episode provides an in-depth analysis of the court's recent leanings, compromises, and the broader implications for law and justice in America.

Transgender Rights and the Scrametti Case

[02:00] Dalia Lithwick:
The episode opens with a discussion on the Supreme Court's recent decision to uphold Tennessee's ban on gender-affirming care for transgender minors. This ruling marks a significant setback for transgender rights, echoing concerns about the court's shifting stance on civil liberties.

[05:59] Chase Strangio (ACLU Deputy Director for Transgender Justice):
“The overwhelming majority of these bans have been in effect for several years... families that have the means and resources have been traveling out of state in order to get the care that they need.”
Strangio emphasizes the grim reality for transgender youth and their families, highlighting the broader national implications of the decision.

[08:29] Dalia Lithwick:
Dalia reflects on the broader movement leading to cases like Dobbs and Scrametti, suggesting that attacks on transgender Americans may signal future challenges to established principles of equality and constitutional rights.

[10:50] Chase Strangio:
Strangio discusses the historical context, mentioning Pauli Murray's legacy and the inadequate protections current laws provide. He underscores the need for continued legal battles to safeguard transgender rights.

[20:41] Chase Strangio:
In a heartfelt message to listeners, Strangio offers solace and encouragement to those affected by the decision, reaffirming the ACLU's commitment to fighting for constitutional rights and supporting the transgender community.

The Role of Justice Elena Kagan

[02:14] Dalia Lithwick:
Dalia introduces Mark Joseph Stern, who joins the conversation to discuss Justice Elena Kagan's unexpected alignments in recent Supreme Court decisions.

[02:35] Mark Joseph Stern:
“What's the strategy? What's the play? What is going on here? Because I cannot believe that Justice Kagan would give up her vote freely in exchange for nothing unless there were some master plan going on.”
Stern expresses confusion and seeks to understand Kagan's motivations behind her decisions.

[23:19] Mark Joseph Stern:
Stern delves into specific cases where Kagan sided with conservative justices, highlighting the 7-2 splits in cases like R.J. Reynolds Vapor Company vs. FDA and Diamond Energy vs. EPA. He questions Kagan's alignment with the majority, suggesting strategic compromises.

[27:39] Mark Joseph Stern:
Discussing the Diamond Energy vs. EPA case, Stern criticizes the court's decision, arguing that it undermines federal agency authority and benefits the fossil fuel industry.

[30:37] Mark Joseph Stern:
Stern continues to analyze Justice Ketanji Brown Jackson's powerful dissent in the Diamond Energy case, contrasting it with the quieter stance of Justice Sonia Sotomayor. He notes the internal dynamics and differing approaches within the liberal justices.

[32:36] Mark Joseph Stern:
In the Stanley vs. City of Sanford case, Stern condemns the majority's decision, again noting Kagan's alignment with conservative justices and criticizing the court's interpretation of the Americans with Disabilities Act (ADA).

[37:36] Dalia Lithwick:
Dalia and Mark humorously speculate about the motivations behind Kagan's decisions, ultimately suggesting that she is aiming to present herself as a reasonable compromiser within the Court's dynamics.

Key Supreme Court Cases Discussed

1. R.J. Reynolds Vapor Company vs. FDA
   [24:46] Mark Joseph Stern:
   Stern explains how the Supreme Court allowed a tobacco company to manipulate legal standing by involving gas stations in the lawsuit, thereby favoring the Fifth Circuit's pro-tobacco stance. He criticizes Justice Amy Coney Barrett's majority opinion for enabling this maneuver.

   Notable Quote:
   “Simply as a matter of law, to allow a tobacco company to just bootstrap these gas stations claims onto the suit and then use all of that to shoehorn the case into the fifth Circuit where it does not belong... is absurd.” – Mark Joseph Stern [24:46]

2. Diamond Energy vs. EPA
   [27:06] Mark Joseph Stern:
   Stern outlines the case where fuel producers successfully challenged the EPA's authority to impose California's stricter fuel efficiency standards. He condemns the 7-2 decision as a defeat for environmental regulation.

   Notable Quote:
   “The court holds that district courts are not bound by a agencies statutory interpretation when those interpretations arise in enforcement proceedings...” – Mark Joseph Stern [43:15]

3. Stanley vs. City of Sanford
   [32:02] Dalia Lithwick:
   Dalia introduces Stanley vs. City of Sanford, where the court ruled against a retired firefighter seeking to sue her former employer for reduced healthcare benefits, citing limitations under the ADA.

   Notable Quote:
   “The court says this particular plaintiff has to lose. She can't get healthcare, she can't get damages. She's screwed.” – Mark Joseph Stern [34:15]

4. McLaughlin vs. McKesson
   [53:19] Dalia Lithwick:
   The court delivered a 6-3 decision to further limit federal agencies' powers, with Justice Kagan dissenting alongside Sotomayor and Jackson, criticizing the majority for weakening regulatory frameworks.

   Notable Quote:
   “This court's decision is going to get covered as first and foremost a case about like imaginary predatory faxes.” – Dalia Lithwick [45:47]

Internal Dynamics of the Supreme Court

The episode highlights a growing divide within the liberal justices, particularly between Justices Kagan, Jackson, and Sotomayor. Justice Kagan's unexpected alignments with conservative justices in key cases have raised questions about her judicial philosophy and strategic objectives within the Court.

[37:53] Mark Joseph Stern:
Stern humorously suggests that if the Court's splits were random, it would involve outdated artifacts like a "silver bowl" for decision-making, underscoring the non-randomness of the justices' alignments.

[43:05] Dalia Lithwick:
Dalia touches on judicial principles, comparing recent decisions to the erosions of established doctrines like Chevron deference, and emphasizing the real-world implications of these rulings.

Conclusion and Future Outlook

As the Supreme Court moves toward its summer break, the episode underscores the anticipation of upcoming rulings that could further reshape American jurisprudence. Dalia and Mark announce the Amicus Breakfast Table event, inviting listeners to join a live discussion with constitutional law experts to dissect ongoing and future Supreme Court cases.

[51:05] Mark Joseph Stern:
“We’ve got LGBTQ books in public schools. We’ve got the Voting Rights Act in Louisiana... the court keeps throwing all these decisions at us...”
Mark lists several key issues awaiting the Court, emphasizing the high stakes and the need for vigilant public engagement.

[51:34] Dalia Lithwick:
Dalia encourages listeners to subscribe to Amicus and engage with their content to stay informed about pivotal legal developments.

Notable Quotes

• Chase Strangio:
  “We're not seeing science based analysis. We're seeing political analysis masquerading as science.” [02:00]

• Mark Joseph Stern:
  “Justice Kagan is doing something with that third vote. What is it?” [02:35]

• Dalia Lithwick:
  “What is happening?” [23:19]

• Mark Joseph Stern:
  “This court's decision is going to get covered as first and foremost a case about like imaginary predatory faxes.” [45:47]

Final Thoughts

This episode of Amicus provides a comprehensive examination of recent Supreme Court decisions, the intricate dynamics among justices, and the broader implications for legal principles and civil rights in America. Through insightful interviews and detailed case analyses, Dalia Lithwick and Mark Joseph Stern offer listeners a nuanced understanding of the current state of the judiciary and its future trajectory.

Stay Connected: For more in-depth legal analysis and updates on the Supreme Court, subscribe to Amicus on Apple Podcasts or Spotify, and visit slate.com/amicusplus for exclusive content and live events.