The Roberts Court’s Internal Reckoning

Summary

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Amicus With Dahlia Lithwick – “The Roberts Court’s Internal Reckoning”

Date: March 21, 2026
Hosts: Dahlia Lithwick, Mark Joseph Stern (Slate)
Main Theme:
An in-depth look at the Supreme Court’s tumultuous term, focusing on the Court’s internal conflicts, approach to the “shadow docket,” key immigration and voting rights cases, and growing tensions over judicial independence—especially in the face of attacks from the Trump administration.

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Episode Overview

This episode explores unprecedented “disorientation” at the current Supreme Court, as major decisions loom on voting rights, executive power, LGBTQ+ rights, and immigration. Special focus is given to the Court’s handling of the Temporary Protected Status (TPS) case, the shadow docket’s controversial use, and public sparring between justices over procedural integrity. Host Dahlia Lithwick and co-host Mark Joseph Stern also examine Chief Justice John Roberts’ muted responses to rising political attacks against the judiciary, and preview the extraordinary array of high-stakes cases still pending this term.

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Key Discussion Points & Insights

1. The Disorientation of the Current Supreme Court Term ([02:48])

• Lithwick laments an "unsettling realization" and “a kind of disorientation” around the Court, echoing confusion shared by many court-watchers this term.
• The Court is “being whipsawed by Donald Trump’s manic activities and insults,” she notes, with an ultra-consequential docket surrounding elections, executive power, LGBTQ rights, and the definition of American citizenship.

2. Immigration and the Temporary Protected Status (TPS) Case ([04:32–18:07])

• TPS Background ([05:16])

  • Created by Congress in 1990 to protect immigrants from countries facing crisis—hurricanes, civil war, disasters.
  • Allows for rolling extensions, used by every president since.

• Trump Administration’s Actions ([06:39, 08:26])

  • DHS Secretary Kristi Noem (under Trump) terminated TPS early for countries like Haiti, Syria, and Venezuela, attempting to strip protections overnight.
  • Mark Joseph Stern: “She purported to prematurely vacate the designation well before it was set to expire and in the process to strip legal status from cumulatively hundreds of thousands of immigrants overnight.”
  • Legally questionable: the statute doesn’t allow for premature termination, nor was the process justified under administrative law.

• Impact on Immigrants ([11:19])

  • Sudden loss of status brings “terror from ICE and CBP agents,” possible indefinite detention, and deportation to dangerous conditions.
  • Stark critique: “This was one of, if not the largest acts of, like, I don't even know the right verb, undocumenting people in the history of the United States, like, with these shadow docket orders." ([11:19] – Mark Joseph Stern)

• Supreme Court’s Initial Response ([08:26])

  • Prior shadow docket orders allowed Trump admin actions with no explanation, destabilizing lives “with the flip of a switch.”

• Shift in Court Attitude ([13:23–18:07])

  • This time, SCOTUS declined to prematurely strip TPS and instead scheduled full arguments.
  • Stern attributes this to Justice Ketanji Brown Jackson’s persistent dissents, emphasizing due process and real human harms.
  • "The big one...is that when a case comes up to the court in this posture, on the shadow docket...the question isn't just who's gonna win on the merits. At the end of day, the question is supposed to be who faces irreparable harm." ([14:37] – Mark Joseph Stern)

3. Shadow Docket, Justice Jackson vs. Justice Kavanaugh ([21:07–31:15])

• “Shadow Docket” Critique ([21:07, 23:55])

  • Justice Jackson, at a public event with Justice Kavanaugh, called the emergency/shadow docket a “warped process” that’s “not serving the court or our country well.”
  • Received enthusiastic applause from lower court judges tired of having their decisions undermined without reasoning.

• Institutional Respect and Judicial Independence ([27:01])

  • Lithwick and Stern highlight Jackson’s written dissents: “You are not even giving these judges the respect of explaining why you would overrule them.”
  • Reinforces judicial independence must include protecting lower court judges, not just Supreme Court justices.

• Cultural Shift ([31:15])

  • Noted rarity, and significance, of a justice openly challenging a colleague in public, not just in opinions.
  • Jackson’s blend of written and public advocacy signals strategic pressure on the majority.

4. Is Full Transparency a Sign of Change? ([33:39])

• Prospects for TPS Case: “Bad and Good” ([33:39])
  • Bad: Stern still predicts Trump likely to win the ability to revoke TPS, based on the majority’s past leanings.
  • Good: “They're going to have to actually explain that view now... It is a win in the procedural and deliberative sense that the court will be acting like a court.”
  • Deliberation, public argument, and opinion writing might alter outcomes—or at least expose reasoning for public scrutiny.

5. Chief Justice Roberts’ Response to Judicial Hostility ([39:33–45:36])

• John Roberts at Rice University ([39:33])
  • Addresses “personally directed hostility” against judges: “Judges around the country work very hard to get it right...But personally directed hostility is dangerous and it's got to stop.” ([41:02] – John Roberts)
  • Notably avoids direct criticism of Trump, but his mild censure considered significant for his reticent style.
• Stern’s Take: "By anyone else's standards...this is weak T, but by the chief standards, I do think it's something." ([42:53])

6. Preview of the Court’s Upcoming Major Cases ([47:02])

• Voting Rights: LA v. Calais ([47:02])

  • The forthcoming decision could “unleash racial gerrymandering” and “wreck the redistricting process for the rest of all time” by gutting key protections for minority voters.
  • Similar high-stakes cases pending: LGBTQ+ rights (conversion therapy bans), trans athletes, executive power over agencies, two gun rights cases, and Trump’s attack on birthright citizenship set for arguments April 1.

• Mail-in Voting Case: Watson v. RNC ([49:41])

  • Challenge to state laws that count mail-in ballots arriving after Election Day if postmarked on time—could disenfranchise many Democratic voters, as “Democrats are much more likely to vote by mail than Republicans.”
  • Fifth Circuit’s “completely incoherent” ruling (per Stern) is part of an ongoing campaign by conservative judges to appeal to Trump and threaten voting access.
  • Historical background is ignored: 19th-century absentee ballots often counted up to 20 days after Election Day ([51:54]).

7. Broader Themes on Judicial Independence and Political Pressure ([56:53])

• Ongoing public assaults on judges (especially district judges) from Trump and allies are demoralizing. Judicial admiration and protection must be inclusive, not Supreme Court–centric.
• Conservative lower court judges, especially in the Fifth Circuit, increasingly issue provocative, results-oriented rulings, often as overt auditions for Supreme Court elevation.

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Notable Quotes & Memorable Moments

• Mark Joseph Stern on the shadow docket’s human toll:
  “The Supreme Court just told hundreds of thousands of people in those cases, Venezuelans, you were here legally and now you’re illegals and you have to go... There seemed to be no interest in all of the hundreds of thousands of lives that had been destabilized and potentially ruined.” ([11:19])

• Justice Jackson’s dissent (as summarized by Stern):
  “[She is] turning to her colleagues and saying, you are not even giving these judges the respect of explaining why you would overrule them.” ([29:27])

• John Roberts on personal attacks:
  “The criticism can move from a focus on legal analysis to personalities. And you see from all over…that it’s more directed in a personal way. And that, frankly, can be actually quite dangerous...personally directed hostility is dangerous and it’s got to stop.” ([39:33]–[41:02])

• Lithwick’s summary of the Court’s dynamics:
  “If she’s that mad that she’s saying it, it’s kind of for reals.” ([31:15])

• Stern, on the Fifth Circuit and judicial ambition:
  “His opinion in this case was not about getting the law right. It was about campaigning for the Supreme Court by trying to toss out disproportionately Democratic ballots…” ([54:15])

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Timestamps for Key Segments

• [04:32] – Introduction and implication of TPS case
• [05:16–06:23] – TPS program explained
• [06:39] – Trump administration’s TPS actions
• [11:19] – Impact on immigrant lives
• [13:23–18:07] – The Court’s recent procedural shift; Justice Jackson’s influence
• [23:55] – Jackson vs. Kavanaugh spar on the shadow docket
• [27:01, 29:27] – Judicial independence and lower court vulnerabilities
• [33:39–36:42] – What’s changed for the Court?
• [39:33–41:02] – Chief Justice Roberts’ response to attacks
• [47:02–49:41] – LA v. Calais (redistricting), preview of major pending cases
• [49:41–54:15] – Mail-in voting case, Watson v. RNC
• [56:53] – Political ambitions of conservative lower court judges and judicial independence

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Tone and Language

Faithful to the program’s deeply engaged, sometimes mordant tone: legal analysis is sharply critical, frank, and at times darkly humorous ("dancing monkeys" auditioning for the Supreme Court). Quotes and summary maintain Lithwick and Stern’s direct style and clear skepticism of the Court’s conservative majority, the shadow docket, and ongoing threats to institutional legitimacy.

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Further Reading/Listening

• [Executive Dysfunction newsletter (Slate)](Link in show notes) – coverage of Judge Boasberg’s latest confrontation with political attacks.
• For ad-free, extended analysis: Amicus Plus on Slate

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For legal professionals, court watchers, and any citizen invested in the country’s future, this episode brings a vivid and unsettling chronicle of the Supreme Court’s crossroads—and the internal reckoning that may define its legacy for years to come.

Transcript

[Dahlia Lithwick]

This episode is brought to you by

[Mark Joseph Stern]

Planned Parenthood Federation of America. The courts matter, the law matters. And so do the people behind the cases, the patients, families and communities Planned Parenthood serves every day. This year, attacks on reproductive freedom have been relentless.

[Dahlia Lithwick]

The Trump administration and Congress passed a

[Mark Joseph Stern]

law to defund Planned Parenthood, a move that puts the health of 1.1 million patients across the country at risk.

[Dahlia Lithwick]

Planned Parenthood is in court to keep

[Mark Joseph Stern]

this law from taking away care from millions of people, but they urgently need your help. You can rush your gift by visiting plannedparenthood.org defend no matter the size, your donation makes a real difference, helping Planned Parenthood protect access to care when it matters most.

[Dahlia Lithwick]

Don't wait. Donate [e-mail] defend this episode is brought to you by Choiceology, an original podcast from Charles Schwab. Ever wonder why we make the choices we do and how to make smarter ones? Join Wharton Professor Katie Milkman, an award winning behavioral scientist and author of the best selling book how to Change, as she shares true stories from Nobel laureates, authors, athletes and everyday people about why we do the things we do and how to make better choices to help avoid costly mistakes. Choiceology covers the latest research in behavioral science and dives into themes like the power of self, shaping your mindset for success, navigating new beginnings, and why starting over can feel so hard. Listen to [e-mail] podcast or wherever you listen. This is Amicus Slate's podcast about the courts and the law and the Supreme Court. I'm Dahlia Lithwick.

[John Roberts]

How do you handle criticism of your court for your opinions today? Well, it does. It does come with the territory.

[Mark Joseph Stern]

He is trying to signal to the White House and to the public. The White House won't get it. Maybe the public will, that something has gone awry and that there is more than just the usual power struggle between the branches going on right now.

[John Roberts]

Personally directed hostility is dangerous and it's got to stop that.

[Mark Joseph Stern]

The executive branch actually seems to be trying to make judges feel unsafe when they rule against him, and that that crosses a line that even the Chief justice wants to police.

[Dahlia Lithwick]

May we live in less interesting times. This week an unsettling realization occurred for somebody who's reported on the Supreme Court for a quarter of a century. A kind of disorientation has crept in this term, and I confess this to reassure you that if you now find yourself just a little bit woolly headed about the comings and goings at the Supreme Court, you're not alone. And this is the show for you, for us. Between continued shadow docket machinations, the 11th hour decision to grant cert on yet another major case, cramming blockbuster arguments into the very last week of April, and the Chief Justice's gentle importuning this week to kindly be kinder to judges and justices is easy to lose one's bearings, but we are in the middle of an extremely consequential term. The court is being whipsawed by Donald Trump's manic activities and insults. And in the coming months, the nine will be deciding a crop of cases that may change the shape of the country and the Constitution with vast consequences for elections, executive power, LGBTQ rights, and who gets to be an American. And that's just the tip of the iceberg. So this week we are doing one of the things I love to do best, which is check in with co host Mark Joseph Stern to try to wrap our heads around all of this and more. Mark, welcome back.

[Mark Joseph Stern]

Thank you so much. Happy to be here. I'm a little sad that I am the person who you call upon when you need a neurotic SCOTUS follower to walk you through all the bad things they're up to to. But that is my lot in life and I'm here to do it.

[Dahlia Lithwick]

So, Mark, let's start at the beginning. And maybe the biggest news out of the Supreme Court this past week was that the justices refused to allow the Donald Trump administration to immediately revoke temporary protected status. That's what we call TPS for more than 350,000 immigrants from Haiti and Syria, allowing them to stay in the country and work and live while this case is resolved and arguments and briefing are actually going happen. It's not going to happen on the shadow docket. It's going to happen like normal people on the regular docket. So I wonder if before we even talk about what the court decided this week, can you just walk us through the TPS program, how long it's existed, why it exists, why it matters?

[Mark Joseph Stern]

Absolutely. So Congress created TPS in 1990 to give the executive branch authority to let immigrants who are already living in the United States remain and work here legally when there are dangerous conditions in their country, either man, man made or natural. So a hurricane, an earthquake or armed conflict, a civil war, all that kind of stuff that would make it unsafe for them to return. It's been used by every president since. It is one of the great humanitarian features of our immigration system. And it sort of embodies the basic idea that we probably don't want to send law abiding immigrants back to their home country to die, to be killed, to suffer horrible things. And so we allow them to stay here for certain periods of time. A designation for TPS applies to a country for six to 18 months, but at the end of that time, it can be extended even longer so that again, people who are living here and following the law, people who are not breaking the law, they can continue their lives, continue to be with their families, while conditions in their home country remain untenable.

[Dahlia Lithwick]

You mentioned that this program has existed, both parties, presidents have deployed it for good reasons. What is it that the Trump administration attempted to do to tps? And then just please explain how they legally justified this.

[Mark Joseph Stern]

So today, technically, it is the Secretary of Homeland Security who designates tps. And so that was for a long time, Kristi Noem. When she came into office at the beginning of the Trump administration, she wanted to terminate a bunch of TPS designations for a bunch of countries. Venezuela, Haiti, Syria among them. All places, by the way, that are still dangerous to return to, that the government warns Americans not to travel to. But Kristi Noem said, we don't need TPS for them any longer. These people have to go home. The problem that she faced, it's not really a problem, but it was for her, is that, as I said, these designations have a set time period, and some of them were not set to expire until well into Donald Trump's term. Some of them were gonna last into 2026. And so she wasn't content to just say, at the end of this designation period, the program will be terminated for this country or that country. Instead, she purported to prematurely vacate the designation well before it was set to, and in the process to strip legal status from cumulatively hundreds of thousands of immigrants overnight. So she said, I can, with basically the flip of a switch, just strip away these legal protections that had allowed immigrants to live and work here, because I don't think that they need it anymore. I don't think this country is dangerous. And asserted this sweeping power, specifically over countries that Donald Trump had targeted during the campaign trail during his previous presidency as places that we didn't want immigrants coming from because basically they were filled with non white people.

[Dahlia Lithwick]

The important part of this story, just as background, is that SCOTUS gleefully leapt into this case. They did so on the shadow docket, and they did so with a thumb on the scale for Kristi Noem.

[Mark Joseph Stern]

Yes. So here's the problem that Kristi Noem faced, and this one is a real problem. The federal statute that authorizes TPS does not allow the Secretary of Homeland Security to, quote, vacate a designation prematurely. It does allow her to terminate it to say, you know, the time is up, the 18 months are over, I'm not going to extend this. But it does not say anywhere or even really hint that she can just cut off a designation well before it's set to expire and again, strip people of legal protections overnight on top of that, even if you try to read that power into the statute. And again, I don't see it. A lot of legal experts don't see it, but she sees it. You would still have to follow the basic rules of administrative law. Couldn't be arbitrary and capricious. It would have to be a reason, decision making, carefully explained, you know, non pretextual justifications. Kristi Noem didn't do any of that. She didn't even really try to explain why she was doing this. It was just, we don't like these immigrants. We're going to take away their legal status overnight and render them detainable and deportable. And so on two fronts, both like on this questionable power to vacate and this pretty egregious violation of the Administrative Procedure Act. This seemed to be illegal and a bunch of TPS holders and their advocates challenged it in court. The lower courts agreed with that, said this is not lawful and froze Kristi Noem's effort to strip away tps. The Trump administration, through Solicitor General John Sauer, then raced those decisions up to the supreme court. And on two different occasions over the past 10 months, the Supreme Court has essentially overruled the lower courts on the shadow docket and allowed for Kristi Noem to strip away TPS overnight in the pretty obviously illegal way that she sought to do. It didn't explain why these were quintessential shadow docket rulings. The justices in the majority didn't bother to give any reasons, but they froze the lower court decisions, which was of course very, very bad news for the hundreds of thousands of immigrants and their families who could suddenly be deported.

[Dahlia Lithwick]

Mark, we talked about this on last week's plus bonus episode, but I think there's a danger when people talk about the law, especially when it comes to lofty Supreme Court cases, and you get way into the footnotes and sometimes lose sight of the st actual people. So can we lay them out for these hundreds of thousands of people from Syria and Haiti? What is the effect of this toggle on again, off again about whether they are going to be deported. Can you just talk about how destabilizing this has been for people who counted on temporary protected status? There's no authority to take it away from them midstream, but they have been subjected to this chaos and this confusion anyway.

[Mark Joseph Stern]

Yeah, they have incredibly strong reliance interests on holding tps for as long as the government had promised them. And when it is taken away, they wake up the next morning without work authorization, in many cases, without the ability to live here free of terror from ICE and CBP agents. In some cases, they can be detained indefinitely without bond when their TPS is taken away. And of course, they can be deported back to, again, a home country that the United States government itself says is unsafe to be in. And so when the Supreme Court stepped in, this was one of, if not the largest acts of, like, I don't even know the right verb, undocumenting people in the history of the United States, like, with these shadow docket orders, unexplained, unreasoned. The Supreme Court just told hundreds of thousands of people in those cases, Venezuelans, you were here legally and now you're illegals and you have to go. We'll talk about this. But I think one of the worst features of those decisions was that there seemed to be no interest in all of the hundreds of thousands of lives that had been destabilized and potentially ruined. There seemed to be no concern. The only concern was for the Trump administration, which didn't even really raise particularly strong arguments on the merits, to my mind. Instead, it cited this provision of the statute that says that certain decisions about TPS are not subject to judicial review. I don't think that that applies to what Kristi Doem did here. All the lower courts to decide these cases so far don't think it applies. Again, it doesn't seem to apply because what Kristi Noem did is not even permitted by the statute. But nonetheless, I guess the Supreme Court found that to be a compelling argument, and so it just sided with Trump over the cries for help from all of these immigrants who, in a better world and with a better court, would have their injuries taken into serious consideration by the justices when deciding this kind of issue, as it's pending on a shadow docket.

[Dahlia Lithwick]

So let's talk about it right now, because you wrote a really, I think, smart piece this week where you noted that in addition to the importance of this grant, with no noted dissents and the decision by SCOTUS to actually hear this case as though there are real people with real interests and there's a real issue and they should take it seriously and not like do a back of the envelope midnight shadow docket decision. This move is also, as you note, really a vindication of one justice in particular, and that's Justice Ketanji Brown Jackson, who has been railing against the decision to use the shadow docket as a means of disposing of these cases. And she's been doing so, as you noted, in some instances, all by her lonesome. And so in addition to the sort of merits. And we're going to talk about who's going to win this case, because that's a question. But the real issue in terms of the court deciding to take seriously what looked like her sort of lone shouting into the wind that this is not the way the court operates. Something shifted.

[Mark Joseph Stern]

Absolutely. I think so. You know, I can't prove it, but when this latest round of TPS cases came up to the Supreme Court and these involved Syrians and Haitians, again, the past ones involved Venezuelans, I had this sick feeling in my stomach, like, oh, God, it's gonna happen again. You know, the court is just going to silently take away these protections from, at this point, 350,000 immigrants. Right. With one decision. And Justice Jackson will issue another fierce dissent and we'll all be upset and then that'll be that. But that didn't happen. Instead, on Monday, the Supreme Court deferred decisions on the legality of this so called vacatur of TPS for Haiti and Syria, set the case on the rocket dockets for arguments in April and probably a decision in June. And a stay deferred is really a stay denied. I mean, what that means is that the Supreme Court refused the Trump administration's invitation to freeze the lower court decisions in favor of the immigrants and to render them deportable in an instant. This was procedurally a big win for the 350,000 immigrants from Haiti and Syria who now get to stay in the United States States for at least a few months longer, get to work legally in the United States for at least a few months longer, have notice that they may need to seek an alternate way to stay here, like by applying for asylum. Right. There are fallback options when immigrants are given notice that TPS will be taken away. That's why Congress built these timeframes into the statute and did not give the government the ability to just take it away overnight. I mean, this was a big deal. And I, I think, again, just my guess, it reflects the court maybe conceding to the point that Justice Jackson had been making in those past dissents. And she made a lot of points, we'll talk about them. But the big one that she said over and over again, this is just true, is that when a case comes up to the court in this posture, on the shadow docket at this stage, without full briefing, without oral arguments, the lower courts are still actively engaged with this. The question isn't just who's gonna win on the merits. At the end of day, the question is supposed to be who faces irreparable harm and in which direction do the equities tip? Like who is going to face a more grievous injury and who has a stronger claim to temporary relief? And what Justice Jackson said, and again, hard to contest this, is that the immigrants face the irreparable injury. The immigrants are the ones who would be grievously harmed if TPS is stripped away from them overnight. And the government, the Trump administration couldn't point to a single concrete injury that it would face, let alone an irreparable harm by keeping TPS in place, even just for a few months longer. Justice Jackson absolutely hammered this point in her past dissents and said again, this is not supposed to be just about the merits. We're still in a preliminary posture. We should be asking who's harmed? And here it is not the government. And the previous two times around, the rest of the court, or at least the conservative justices pretty much ignored her. This time though, maybe they listened because they did exactly what she had counseled, which was to keep teeth EPS in place and then set this case for arguments and decision the right way to ensure that everybody's claims will be aired out and heard and deliberated upon properly.

[Dahlia Lithwick]

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And she went on to warn this, quote, this uptick in the court's willingness to get involved with cases on the emergency docket is a real unfortunate problem. I think it is not serving the court, court or our country well at this point, end quote. And of course, Justice Kavanaugh, surprising no one defended how things get decided on the shadow docket. And this event, let's be clear, is attended by lower court judges across the spectrum, including, it's worth mentioning, Judge Boasberg, who's been targeted by the Trump administration for sharp criticism, even impeachment. He's also the star of our Executive Dysfunction newsletter this week. And I want to note that because Justice Jackson's warning was reportedly greeted with enthusiastic applause. Now, we know that lower court judges are really tired of being called out for trying their best to decide things and then being spanked for getting it wrong or for not correctly applying a shadow docket order that has no actual holding or real reasoning. But the other thing that's worth noting about this little back and forth is that Justice Jackson is not just warning in her dissents. She is sitting face to face with her colleague at an event, and she is saying this is not an appropriate way to solve problems. And by the way, every time we grant one of these emergency appeals, we encourage yet more of it. And Justice Kavanaugh is sitting there and saying, oh, it's fine, it's fine, everything's fine. Saying it out loud in a room full of judges feels like an escalation.

[Mark Joseph Stern]

I think so. I think it registered as some kind of escalation. And I think it's notable there was applause in that room filled with judges. I'm reminded of about a year year ago when Justice Jackson spoke to a judicial conference that had a lot of district court judges, and she praised them for their courage under fire and said, I know that loneliness. You have to keep going, keep doing what is right for our country. I do believe history will vindicate your service. It's easy to forget that the fight over the shadow docket is not just a fight over these specific cases. It's a fight over just how much disrespect the Supreme Court is going to show to the lower courts as they try to do their jobs under immense pressure and constant, fierce criticism and slander from the leader of the country and many of the politicians in his party. Right. You know, with a appellate court, there's multiple members, there's multiple people to take fire. You know, Trump went up there after the tariffs decision. He complained about Gorsuch, he complained about Barrett, he complained about Roberts. But with a district court judge, it's just you out there. And Judge Boasberg knows that better than anyone. And, of course, Justice Jackson was a district court judge for many years, for most of her judicial career. And so I think she is continuing to try to express the interest of district court judges and to show her colleagues the consequences of their disregard for the careful work and reasoned opinions of district court judges and where it leads. You know, she talks about the warped process. She says it's not serving the country well, not just the court, but the country. And this absolutely picks up the themes of some of her dissents, including in the TPS cases where she says, you are disrespecting the lower courts that are the ones who are actually on the front lines of these cases. They are the most informed and best situated to figure out what interim relief should be granted while both sides duke it out. And, you know, for her to say that straight to Brett Kavanaugh's face feels kind of incredible to us, I guess, because we don't normally see it. You know, even during oral arguments, when the justices, like, criticize each other, they have these poker faces. They stare straight ahead. They never, like, turn to each other when they land dings and zingers. But here they were face to face. And I guess, like, it should be a remind here, she's probably having these conversations with him behind the scenes, too, and that cannot be fun. That actually probably takes a great deal of courage. There's been so much reporting about how, oh, Justice Jackson isn't tactful. Right. She isn't strategic like, you know, Justice Kagan and Justice Sotomayor. They pull their punches a little bit. They try to meet in the middle. They try to be conciliatory. We all know Justice Jackson isn't doing that. And I think that that has its own kind of strategic value and strategic benefit. Shaming her colleagues into doing the right thing may be one of her MO's this point. And again, based on the court allowing TPS to remain in place for the first time so far may suggest that, like, it's working and she should be keeping the pressure on and alerting the lower courts, the American people, everybody who will listen, that something has gone badly awry at scotus. And she's not just going to sit back and let it fester. She is going to be out there alerting us to it at all times.

[Dahlia Lithwick]

Mark, you're making a really subtle and I think, important point, which is we've seen more than one justice on the Roberts side excoriate a district court judge for not somehow, you know, amazing mind reading abilities of figuring out what a shadow docket order actually commands and applying it appropriately. Like, I think that part of the reason they get away with stuff like that is because they don't always sit face to face with a bunch of district court judges. Right. We also saw this in the court's first run at the birthright citizenship case last year, when they avoided the decision on birthright citizenship, but certainly came away disempowering trial court judges where it's just really easy to slag a district court judge when you're not hanging out with them. And you're certainly not having to answer to exactly the critique that Jackson is lifting up here, which is they are doing their best under hardship circumstances. Somehow the court has not explained the emergency, has not explained the balance of equities, has not explained the imminent harm. And then for the to turn around and say, we did none of those things, but you suck. It's really easy to do that when you're not sitting in a room full of judges who are doing their very best. And I think one of the things that you're saying that is really important is you cannot talk about judicial independence again. In a second we'll talk about John Roberts talking about judicial independence without sweeping in the entire judiciary. And it is really, really common to hear the justices at the Supreme Court who can be insulated from a lot of the slings and arrows other than the ones flung directly at them, to say, oh, you know, judicial independence means I should be free. This was a really important moment, I think, in which Justice Jackson did exactly what you noted she did when speaking to judges last year, which is say, I see you, I hear you, I know you are part of the Article 3 Judiciary. I know that the work that you do matters. And I understand that when we of all people on this court attack you or allow others to attack you, we are failing to do our job. And I think it's an important move, and I'm not sure we hear it as much from members of the Supreme Court as we should.

[Mark Joseph Stern]

No, I agree. And she also has the courage to put this in her actual written dissents, as well as to state it outright to Brett Kavanaugh's face, to a room full of judges. And one of the, the most overlooked dissent she's written so far, I think actually was in the second TPS case to hit the court where she had this section that was almost like a fourth wall breaking, like meta, because she said, you know, my colleagues have now essentially overruled the, quote, reasoned and thoughtful written opinions of the lower courts that had found Noem's removal of TPS unlawful. And she said, now my colleagues choose to, quote, wordlessly override their considered judgment, disregard the opinion writing capacity and a rush to allow this administration to disrupt as many lies as possible as quickly as possible. So she is in this opinion, much as she did, I guess, during this live event. She's turning to her colleagues and saying, you are not even giving these judges the respect of explaining why you would overrule them. So this is not just about the harm that's inflicted on immigrants. That's important. That's the marquee thing in these cases. Right? But she's saying you're also screwing up the entire judiciary because you're taking, taking their, in some cases, like very long, very complex thought out views and throwing them in the dumpster without a word of explanation why. And again, I'm just gonna keep hitting this theme. They didn't do it this time, right? They could have. I thought they would have, but they actually seem to have heeded what Justice Jackson suggested and they didn't throw the lower court's decision in the dumpster. They didn't screw over hundreds of thousands of immigrants. I think that tells us something about the efficacy of Justice Jackson's approach here.

[Dahlia Lithwick]

It's funny, Mark, when I was thinking about the Justice's willingness to pop off on one another and on district courts in their written opinions and not do it verbally, I was thinking, it's so interesting, right? Because we've always been told, I mean, since I was a baby reporter, don't pay attention to what they say, pay attention to what they write. Sandra Day o' Connor famously saying, it doesn't matter what we say in our speeches and know where we go around the world and say stuff. What matters is in the four corners of our opinion. And it's so interesting that in the four corners of an opinion the justices are much more willing to take swipes at each other than they are when they're actually sitting face to face in a public setting. Then it's really, really existential to say, we all get along great, we love each other, we go to lunch. So it is doubly interesting to see a justice willing to not just say it in an opinion, but actually to say it face to face to her colleague, to a room full of judges who are thirsty for vindication that we take seriously in a way that is completely upside down from how we are supposed to be thinking about the justice's work product, that if she's that mad that she's saying it, it's kind of for reals. I want to talk for one last second about the TPS case, because we've just been making it sound like, hey, the Trump administration is going to lose this case. And I think we should be really clear based on, as you say, or shadow docket opinions and based on the general posture that the majority, the conservative majority, has about Donald Trump's capricious declarations of emergencies left, right, and center. But it is still a win for something that looks like, and you've said this a couple times, real transparency. And maybe I just want to say, because our listeners are always saying, what can I do? What can I do, do? This is a win for people who have been pretty vocal in saying that the shadow docket is kind of gross. It makes them feel hinky, and they don't have a lot of confidence in the ways that this court makes decisions late at night, you know, in two sentences, in unsigned orders where you don't actually know the vote all the time. So maybe this is a lever that we should really think about taking seriously, which is something I has shifted.

[Mark Joseph Stern]

So let me give you the bad, and then I'll give you the good. I mean, the bad is that if I were a betting person, I would say that the court is still going to allow for the Trump administration to revoke TPS prematurely. I don't think that it should. But based on those earlier shadow docket orders, like, it seems probable. And I think what the court will say is that because the statute bars judicial review of a secretary's decision not to renew TPS designations, then it implicitly also bars judicial review of a secretary decision to prematurely vacate TPS designations. Again, that is wrong, because they don't even have the power to prematurely revoke TPS designations. This is a rewrite of the statute, but it seems to be the rewrite that conservative judges are landing on. And I fear that will win over a majority of the court. But here's the good they're going to have to actually explain that view now. They can't just pass it off in a one sentence order handed down, down at midnight. They're going to have to go to oral arguments, talk about it in an open court, go to conference, argue about it at conference. Do the actual opinion writing process go through and try to justify a decision that lets the Trump administration do something that federal statutes simply do not allow it to do. There is always a chance that a justice or two could change their mind during that process. It has happened before. It seems to have happened with Chief Justice Roberts in the census citizenship case, seems to have happened with him as well in the first Obamacare case. Like my minds are changed with deliberation. And I think that that is one of the points that the liberal justices make when they highlight the lack of deliberation in these shadow docket cases. The talk about fourth wall breaking. They've recently informed us for the first time that shadow docket cases don't even get discussed at conference as a matter of course. And so when the justices are telling hundreds of thousands of immigrants, oh, you've been revoked of tps, good luck out there. They haven't even met to discuss that. They're just registering their votes, like maybe over email, maybe over a conference call. But as far as tell, there is no interchange. Like Brett Kavanaugh doesn't have to hear Ketanji Brown Jackson explain all the reasons why this is illegal or at least all the reasons why immigrants would face irreparable harm by allowing this to happen immediately. And the government needs to cool its jets. The conservatives get to isolate themselves and insulate themselves from the other side's arguments. And I think that is extremely unhealthy. And I think it leads them to bad decision making. Now, will it lead them here to good decision making because they are finally hearing arguments and getting full briefing and talking about at a conference? Probably not. But again, it is a win in the procedural and deliberative sense that the court will be acting like a court, which is something that it's kind of forgotten how to do since Trump returned to office, arguably before then. And it's a win in that I think it does at least somewhat increase the odds that the court will come to the right decision because it won't be able to duck all of the very powerful legal arguments as to why what the Trump administration tried to do here was of a lot lawful.

[Dahlia Lithwick]

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[John Roberts]

How do you handle criticism of your court or your opinions today? Well, it does, it does come with the territory. Often when any of us issued opinion, there's often a dissent. Usually not. But I mean, people, most opinions, or more opinions than anything else are unanimous. And that's pretty. You get used to the criticism right away. And it can very much be healthy. We don't believe that we're, you know, flawless in any way. And it's important that our decisions are subjected to scrutiny. And they are. The problems sometimes is that the criticism can move from a focus on legal analysis to personalities. And you see from all over, I mean, not just any one political perspective on it, that it's more directed in a personal way. And that, frankly, can be actually quite dangerous. Judges around the country work very hard to get it right. And if they don't, their opinions are subject to criticism. But personally directed hostility is dangerous and it's got to stop.

[Dahlia Lithwick]

And of course, Mark, he doesn't name names and he doesn't name the one guy who just last weekend was out there trashing the members of the court who voted him on the tariffs case. Just last weekend, Donald Trump truthing, quote, our country was unnecessarily ransacked all caps. By the United States Supreme Court, which has become little more than a weaponized and unjust political organization. The sad thing is they will only get worse. Exclamation, mark. This predates the decision in the tariffs case. There was lots of, like, hostility and threats because Trump, I think, knew he was going to lose the tariffs case. But like, name checking, justices, going after them personally mentioning their families. So here's John Roberts yet again, sweetly saying, please stop, stop, stop, it's bad for us. This feels like yet another round of. And Roberts, you know, in his own quiet way has been pushing back. So this is either sort of more like ineffectual, Like, I just think of him as like a kitten, like, bapping away at Donald Trump with his little paw. But like, maybe this is really John Roberts telling us that Trump is clearly crossing a red line, that this is not funny. And I guess my question for you, it's my question for me, too, is, is there any reason to believe that the court is starting to realize, like, holy cow, we painted ourselves into a box with this guy and now we have to live in this bed that we made ourselves over and over. Is there any reason to believe that John Roberts has had enough?

[Mark Joseph Stern]

Um, so look, this is gonna sound more insulting than I mean it to, but I think that John Roberts has set the bar for himself so low that this amply clears it and deserves five to six seconds of Polite applause. He seems to have a pretty obvious shtick. Okay, this is what he does. Nothing. Most of the time. He makes no public comments, he makes no statements. Right. He keeps his head down. He does the work of the court, but he does not address what's going on in the country, which is in this case, a sustained assault on the integrity and safety of the judiciary by the President of the United States and his allies. He says nothing. And then when it finally, finally hits a certain point where he just can't tolerate it anymore, or he deems it to have become truly and genuinely dangerous to not just judges lives, but to the Republic, he'll say something very short, very kind of temperate and qualified. But it's the signal to all of us, I think it's supposed to be the signal that he is capital W worried or maybe capital C concerned. And that's what he did with this interview. You know, when a Justice is interviewed by a judge, as was the case here, everyone should understand the questions are generally gone over beforehand. Quite often the justice will ask the judge to pose certain questions so that the justice has an opportunity to say something here. I absolutely think that the chief told this judge, his interlocutor, you know, I want to get to this issue, so make sure you prompt me on it. And he said what he had to say. What he had to say was very, very, very mild. But by his standards, it was something. Right? He said it's got stop. That the naming and shaming and specific targeting of judges, particularly by powerful and influential people, has got to stop. And that was even more than what he said about a year ago when Trump was threatening to try to impeach Judge James Boasberg and he issued his last public statement, which was, we don't impeach judges because we disagree with them. Again, by anyone else's standards, certainly by, like Justice Jackson standards, this is weak T by. But by the chief standards, I do think it's something, and I really do think he is trying to signal to the White House and to the public. The White House won't get it, maybe the public will, that something has gone awry and that there is more than just the usual power struggle between the branches going on right now that the executive branch actually seems to be trying to make judges feel unsafe when they rule against him, and that that crosses a line that even the Chief justice wants to put police.

[Dahlia Lithwick]

So first of all, 12 seconds of sustained applause to you, Mark, which is eight seconds more than the Chief justice just warranted. Listen, I totally agree. Held up against what Justice Jackson was willing to say about the consequences of going after judges. It is a fascinating case study, encourage, which, by the way, is a word the Chief justice used at that Rice event. Second of all, I just want to pause to hand on heart, spare a thought for our younger selves, Mark, you and I, who entered this term, dewy eyed, rosy cheeked, the term began. Oh my God. This seems like a billion years ago in October of 2025. And we pretty much were right out the gate with arguments in the landmark voting rights case, LA vs Calais on October 15th. And as I've noted, I am too 2000 years older than that right now, by the way. I know that you are, too. We are still awaiting a decision in that case that could really unloose a whole wave of racial gerrymandering around the country that is going to make this year's redistricting arms race look like a sock up. And we're going to talk in a second about what else is coming down this term. But can we just talk briefly about Calais? What are the stakes in this case?

[Mark Joseph Stern]

Oh, my God. I feel like my hairline has receded too early. Inches since oral arguments in the Calais case, Dalia. But here we are, still awaiting a decision, as you say. I mean, this could absolutely wreck the redistricting process for the rest of all time by unleashing racial gerrymandering in a bunch of states that have been held back from it by nothing more than the Voting Rights act, by section 2 of the Voting Rights act, which the Supreme Court seems poised to gut or kneecap in some way. And once that happens, happens, we will see states like Louisiana, like Florida, Georgia, go after districts that have a lot of racial minorities in them and ruthlessly carve them up, divide them to ensure that those minorities are not able to elect their representative of choice, not able to participate equally in the democratic process. States are already kind of licking their chops. Some Florida Republicans were getting ready to do it in case Calais came down early. It hasn't come down yet, so probably we can be marked safe from this Calais nuclear bomb for the 2026 election. But this will be the issue in the 2028 House races. And it's not even like the only big, gigantic Supreme Court decision that we're awaiting as of this moment. Right. So we're still awaiting a decision in the case challenging LGBTQ conversion therapy bans for minors, which exist in more than half the states. More than half the states protect gay and transgender children from conversion therapy. This case says that violates the first AM I think, unfortunately, the Supreme Court will agree. We're awaiting decisions in, in the trans athletes case deciding whether states can just outright ban trans athletes from participating in school sports. We're awaiting decisions in the challenges to Trump's control over independent agencies and the Federal Reserve. Two big gun cases, one challenging Hawaii's law that generally restricts carrying a gun on private property, another that acts whether drug users have a right to bear arms. And then, of course, on April 1st, the court's gonna consider Trump's attack on birthright citizenship. This is one of the most consequential terms of our lifetime, but I feel like we're saying that every term now. Dahlia, is this Groundhog Day? Do they just keep raising the stakes every single term? Dahlia, am I wrong? Am I losing my mind?

[Dahlia Lithwick]

No. Every term is the like term of a lifetime. And add to your list. That's not all, because this coming Monday, the court's gonna hear Watson vs. RNC, which is an existential challenge to mail in voting, which might or might not be relevant given that we've got elections coming up.

[Mark Joseph Stern]

Let's talk about this case because it, it really does drive me crazy. It marks an effort to overturn laws that count mail ballots if they arrive shortly after election Day, usually a few days after election day, as long as they are postmarked or scanned by USPS on or before election day, which proves that they were in fact submitted by election day. Nearly half the states have these law, including Texas, by the way. Some red states have them, including Mississippi, and they've enacted them for the sensible reason that it seems like your right to vote shouldn't be undercut by USPS delays entirely outside your control. Federal law does not actually say that states have to toss out mail ballots that come in after the election. It also doesn't say that they have to count them. Federal law is entirely silent on this. And the only federal statutes that govern the receipt of mail ballots explicitly defer to states decisions about deadlines. And other than that, you can search the statutes high and low. You will not find any congressional statement about whether late arriving ballots should be counted. Plenty of Republicans in Congress have introduced legislation to try to throw out late arriving ballots. They haven't passed. So the Republican National Committee filed this suit to try to enact such a law through the courts instead of the democratic process. And of course, they shop their case to the fifth Circuit, which predictably declared that late arriving mail ballots are invalid. In a characteristically sloppy opinion by our dear friend Judge Andrew Oldham. This was, of course, part of his ongoing campaign for a Supreme Court seat. Judge Oldham declared that when Congress set the dates for federal elections, it implicitly demanded that all ballots be received by that date. And to reach that conclusion, he defined an election to mean the date by which ballots are received, rather than the date by which voters have cast their ballots, which is sort of how the Supreme Court has always described it. Can I just briefly get into a historical footnote here? Cause I think this is a court that's constantly talking about history, and this is a really important piece of the case that's kind of fallen off.

[Dahlia Lithwick]

Please, Mark, will you talk about history?

[Mark Joseph Stern]

Okay. Judge Oldham basically ignores this, but the key statute here was enacted in the 19th century, when absentee voting was still pretty rare. The widespread use of absentee voting occurred for the first time during the Civil War, when many states allowed soldiers to vote from the field. The Constitutional Accountability center looked into those laws passed in the 1860s, and guess what they found? A bunch of them explicitly counted absentee ballots that arrived 15 to 20 days after election Day, including those that arrived by mail. So the only relevant history here about late arriving ballots shows that states counted them in the advent of absentee voting. And when Congress shortly thereafter enacted enacted the law that governs when Election Day is for us, even in 2026, it said nothing about that. So there's just silence here. There is no indication that Congress wanted to throw out these ballots. There is every indication that Congress wanted to defer to the states. And yet we now have the Republican Party insisting that all of these ballots that arrive a little bit late have to be thrown out, because that's what a law that doesn't exist mandates.

[Dahlia Lithwick]

Excellent use of history by you and the Constitutional Accountability Center. This also really dovetails with the debate that's raging right now in Congress about the SAVE Act. This is the President's favored voting suppression bill. It's currently paralyzing the United States Senate. It's hilarious that it's being messaged as like, we have to make sure they don't vote. Like there's just so much quiet part loud happening around the SAVE act and various versions of versions of the law and amendments to the law would just outlaw late arriving ballots or voting by mail altogether. It does really feel like the GOP is just trying to sneak one version of the SAVE act into the law. Right? This is the Trojan horse doing it by judicial fiat instead of by congressional action. And if this doesn't happen by the democratic process, it still gets to happen by virtue of the judiciary.

[Mark Joseph Stern]

I think that's the best way to understand this case. Right. There are all these different iterations of the SAVE Act. But the key proposals before the Senate, as you said, Dalia, they would restrict mail voting. Some of them would ban mail voting. One amendment would address these late arriving ballots, throw them all out. Highly unlikely that any of that passes. This is all subject to the filibuster. Some Republicans want to nuke it. I don't think that's going to happen. And then this is just an effort to say, oh, well, okay, Congress couldn't get this done, so the Supreme Court will get it done. Which is like exactly what conservative judges are always warning against, right? Seeking a shortcut through the judiciary when you can't win through democracy. But that's what Republicans are trying to do. Why are they trying to do it? Because right now, Democrats are much more likely to vote by mail than Republicans. In many states. Donald Trump has specifically dissuaded his supporters from voting by mail. Republican mail voting has dropped. And there is some data that indicates that late arriving ballots are somewhat more likely to, to be Democratic than Republican. And so this is a very targeted effort to throw out disproportionately Democratic ballots that were validly cast under state laws that have been in place in some form since the 1860s. And, you know, I think it's fairly unlikely that the Supreme Court will actually take up this offer. Some rare optimism from me. Oldham's decision from the 5th Circuit is completely incoherent. He is one of the most reversed appeals court judges today. The justices now smack him down, like, multiple times every term. So I think a majority will be sensible enough to overturn him here as well. But the sad footnote is that, like, he won't care because his opinion in this case was not about getting the law right. It was about campaigning for the Supreme Court by trying to toss out disproportionately Democratic ballots and helping the Republican Party. And there's no better way to audition for the Supreme Court than to promise Donald Trump that you will interfere with elections to help the Republican Party win. So I guess we've come a really long way since 2020 and the big lie, when you had, you know, federal judges lining up to smack down Donald Trump's attempt to steal the election and his false claims of voter fraud. Now we have 5th Circuit judges trying to interfere with free and fair elections by changing the rules in a way that they have no authority to do, basically at the behest of Donald Trump, who is more or less treating them as dancing monkeys, trying to see who will dance the most so that they can secure a lifetime appoint on the most powerful court in the land so that they can continue to do his bidding for 30 years to come.

[Dahlia Lithwick]

That is the question who is the dancing est monkey of them all? And this is the question that Mark and I repeatedly tackle in our conversations on plus, which are, as was this one, equal parts stimulating and bone chilling. Mark, one little piece of supplemental reading before you you go. We've mentioned Judge Boasberg several times now. In this episode, he's been a frequent target of the Donald Trump administration. And this last week he was again publicly pummeled by made for television judge flailing deeply strange D.C. prosecutor Jeanine Pirro. And this little contretemps is the subject of this week's Executive Dysfunction newsletter from Slate's Jurisprudence team and our own incredible colleague Shirin Ali, who's been burning the midnight oil reading about Jeanine Pirro. So we don't have to can you tell the good people why they should click subscribe and sign up for Executive Dysfunction? Please?

[Mark Joseph Stern]

Yes, please subscribe. This issue is fantastic. It's a really good deep dive into Judge Boasberg's decision quashing Jeanine Pirro's subpoena of Fed Chair Jerome Powell. Powell, this, you know, nonsense investigation claiming that Powell lied to Congress about the Fed's renovation. Judge Boasberg found that the whole thing was utterly pretextual and in bad faith, he completely smacked on Trump. It's a very satisfying reading. It, it made me kind of like stand up and cheer. And it's especially relevant now because on Wednesday, Powell announced that he would be staying on the Federal Reserve for at least as long as Jeanine Pirro is investigating, which is a very, very brave move. I guess bravery is a sub theme this week and shows that he is like the last Republican in Washington, D.C. who has not been brain poisoned by MAGA and is willing to stand on principle. So Shirin gets into all that and more in the newsletter. Everybody should go read it.

[Dahlia Lithwick]

And I'm just gonna note we're gonna link to the newsletter in our show notes this week and Mark and I are going to hop on over to the plug bonus segment. But Mark, way to catch us up on the Good, the Bad and the Ugly and the dancing monkeys that want to be on the court. It's always a pleasure talking to you. Thank you.

[Mark Joseph Stern]

Always a pleasure, Dalia, Thanks.

[Dahlia Lithwick]

That's all for this episode of Amicus, but slide on over to the Amicus plus smokeless Cigar bar for an extra cigar serving of legal tea. Mark Joseph Stern is already there on the plush velour sofa, preparing for our staged reading of one of the worst judicial tongue lashings directed at the Bondi Clown Car doj. Yet this transcript is a rich legal text. The presumption of regularity is in tatters. We are laughing through our tears. If you'd like to listen, visit slate.comamicus+ to join us. Your membership supports our work and you get loads of extras and ad free listening and paywall free [e-mail] it's a total win win proposition. You can also subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify. Our bonus episode is available for you to listen to right now. We'll see you there. Thank you so much for listening and thank you so much for your letters and your questions and your comments. Keep them coming. We are reachable by [e-mail] you can find [e-mail] Amicus Podcast. You can also leave a comment if you're listening on Spotify or on YouTube or rate us and review us on Apple Podcasts. Sarah Burningham is Amicus's Supervising producer. Our producer is Sophie Summer Grad, Hilary Fry is Slate's Editor in chief, Susan Matthews is Executive editor, Mia Lobel is executive producer of Slate Podcasts and Ben Richmond is our Senior Director of Operations. We'll be back with another episode of Amicus next week.

[Mark Joseph Stern]

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[Dahlia Lithwick]

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