Amicus With Dahlia Lithwick | The New Constitutional (dis)Order

Podcast Information:

• Title: Amicus With Dahlia Lithwick
• Host: Dalia Lithwick
• Episode: The New Constitutional (dis)Order
• Release Date: January 18, 2025
• Description: A show about the law and the nine Supreme Court justices who interpret it for the rest of America.

Introduction

In the episode titled "The New Constitutional (dis)Order," host Dalia Lithwick delves into the seismic shifts occurring within the American legal and political landscapes. Released just two days before Donald Trump's inauguration as the 47th President, Lithwick discusses pivotal issues ranging from the Supreme Court's recent decisions to potential mass pardons related to the January 6th events.

TikTok Ban and Supreme Court Ruling

Lithwick opens the discussion by addressing the Supreme Court's unanimous per curiam opinion that upheld the TikTok ban in the United States (00:49). Despite the ruling, practical enforcement remains uncertain. President Joe Biden has indicated his intention not to enforce the ban, while President-elect Donald Trump vows to "fix it," leaving the future of TikTok in a precarious state.

Mark Joseph Stern elaborates on the court's reasoning:

"The Supreme Court... upheld it on the grounds that Congress has put forth a very strong reason for the statute and that it has tailored the statute appropriately to meet and further the concerns that it has laid out over years of study and legislation." (48:54)

Lithwick emphasizes the gravity of the situation:

"This is incredibly serious... We've had both President Biden and President Elect Donald Trump making feints at all. This is going to get fixed and it's going to get fixed in the next seven minutes, quite literally." (52:00)

Jack Smith's Report and DOJ Discussion

Lithwick introduces Pamela Carlin, a renowned legal expert, to discuss Jack Smith's report on the events of January 6th and Donald Trump's involvement. The report, released on Tuesday, outlines fraudulent attempts by Trump to undermine the election results but stops short of charging him with insurrection.

Mark Joseph Stern provides insight:

"Jack Smith went with things that he thought were slam dunks... This isn't gutlessness, this isn't milquetoast. This is not his job." (04:07)

Pamela Carlin reflects on the uniqueness of the case:

"This is just such a rare thing... you want to have your case really dialed in and buttoned down. And so I think, you know, Jack Smith went with things that he thought were slam dunks." (06:07)

Confirmation Hearings and DOJ's Future

The conversation shifts to the recent confirmation hearings, highlighting the lack of rigorous questioning from Republican senators. Mark Joseph Stern critiques the Senate's handling:

"Instead of allowing for some questioning, what you saw is a combination of Senator Wicker not allowing a second round of questioning at all." (17:06)

Pam Bondi, a nominee, exemplifies the trend by evading direct questions about the legitimacy of the 2020 election results, showcasing the administration's resistance to accountability:

"I accept, of course, that Joe Biden is President of the United States." (18:31)

Potential Mass Pardons for January 6th Convictions

Lithwick raises concerns about Trump's potential mass pardons for those convicted in the January 6th events. Mark Joseph Stern warns of the implications:

"It tells them, go ahead and do that again. Donald Trump will pardon you and Donald Trump will be in office for the next four years." (31:14)

Federal Aid and Political Conditioning

The episode explores fears that the incoming administration might condition federal relief on political compliance, echoing tactics reminiscent of authoritarian regimes. Mark Joseph Stern emphasizes the threat to democratic principles:

"The idea that you wouldn't provide disaster aid... is just antithetical to everything we believe in." (35:44)

The Role of Lawyers in Current Legal Climate

Lithwick probes into the responsibilities of lawyers amidst the legal turmoil, questioning whether legal professionals should engage more actively or find themselves overwhelmed by the chaos. Pamela Carlin responds by highlighting the need for lawyers to serve broader democratic movements:

"Lawyers are in the service of a larger movement of people who seek democracy... the law is a tool for making this country live up to its promises." (38:51)

Closing Thoughts

As the episode concludes, Mark Joseph Stern shares his commitment to appellate litigation and educating future generations of lawyers to uphold democracy:

"Studies stubbornly believe that democracy is no longer hurt by so many people trying to stress the system." (43:18)

Lithwick underscores the importance of both bearing witness and taking meaningful action to support democratic ideals:

"You are not required to finish the work, neither are you free to desist from it." (43:18)

Key Takeaways

• Supreme Court's TikTok Ruling: The unanimous decision upholds the ban, but its enforcement is uncertain due to conflicting signals from the current and incoming administrations.

• Jack Smith's Report: While detailing Trump's efforts to undermine the 2020 election, the report refrains from charging him with insurrection, citing legal uncertainties.

• DOJ's Independence: Confirmation hearings reveal a troubling trend of reduced scrutiny, potentially compromising the Department of Justice's impartiality.

• Mass Pardons Risk: Potential pardons could undermine legal processes and embolden extremist actions.

• Federal Aid Concerns: There are rising fears that disaster relief and other federal assistance might be politically leveraged.

• Lawyers' Role: The legal community faces challenges in navigating and upholding democratic principles amidst political turmoil.

Notable Quotes

• Mark Joseph Stern on TikTok Ban:

  "I think the court has done its job correctly, and whatever happens next is not really the Supreme Court's fault." (55:46)

• Pamela Carlin on Laboring Amid Chaos:

  "The law is the law. It is also not the Law. This is Schrodinger's Constitution." (00:43)

• Dalia Lithwick on Legal Process and Action:

  "The law is a tool for making this country live up to its promises. But there has to be a much larger group of people committed to that than just lawyers." (38:51)

Conclusion

"The New Constitutional (dis)Order" serves as a critical examination of the ongoing challenges facing the American legal and political systems. Through insightful discussions with legal experts Pamela Carlin and Mark Joseph Stern, Dalia Lithwick provides listeners with a comprehensive understanding of the complex interplay between law, politics, and societal change in the United States.