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.

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.

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.

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])

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

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.

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

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.