Amicus With Dahlia Lithwick | Law, justice, and the courts
Episode: The Supreme Court Term RBG Is Calling "Momentous" (Sept 30, 2017)

Overview:

This episode of Amicus, hosted by Dahlia Lithwick, centers on the Supreme Court’s 2017 term—a period Justice Ruth Bader Ginsburg labelled “momentous” due to a litany of highly consequential cases on the docket. Lithwick is joined by David Cole, national legal director of the ACLU, who provides insight into these cases and the broader state of civil liberties under the Trump administration. The discussion tackles the substance and significance of cases on voting rights, religious freedoms, privacy, the travel ban, immigration detention, and the role of citizen activism in shaping constitutional law.

Key Discussion Points & Insights

1. The Context of the 2017 Supreme Court Term

• The court returns to a full bench (nine justices), with the addition of Neil Gorsuch shifting the ideological balance (01:44).
• The docket includes cases pertaining to voting rights, partisan gerrymandering, civil rights, the travel ban, public sector unions, and more (00:16).

2. The ACLU’s Role as "Law Firm for the Resistance"

• David Cole shares the experience of the ACLU’s sharply oppositional posture to the Trump administration, emphasizing the organization's enduring nonpartisan mission (02:25).
• Quote: “If your purpose is to defend civil liberties and civil rights, then when an administration comes in that has very little respect for even, it seems, understanding of basic civil liberties and civil rights, our work becomes much more important.” — David Cole (02:56)

3. The Changing Stance of the Justice Department

• Courts note with concern when the DOJ reverses long-standing positions with administration changes (05:17).
• Masterpiece Cake Shop case illustrates DOJ backing a constitutional exemption to nondiscrimination laws for the first time ever.

4. Masterpiece Cakeshop v. Colorado Civil Rights Commission (06:59)

• The case pits a baker’s First Amendment and religious free exercise claims against state anti-discrimination law protecting same-sex couples.
• Quote: “The basic question... is not whether the baker thinks he’s expressing something. The question is, what’s the government regulating?” — David Cole (10:31)
• Cole predicts the Supreme Court will likely reject the First Amendment exemption claim, as similar arguments have failed historically (09:45).

5. Voting Rights & Ohio Voter Purges

• ACLU challenges Ohio’s practice of purging voters for non-participation in elections (12:04).
• The DOJ reversed its position from supporting ACLU against purges to now supporting Ohio (13:29).
• Quote: “For the health of a democracy, you need to have people express their views. You need to make it easy for, encourage, facilitate the democratic exercise of voting...” — David Cole (15:04)
• Cole frames current voter suppression efforts as “fundamentally anti-democratic” and a dangerous political strategy (15:22).

6. Carpenter v. United States & Digital Privacy (17:33)

• The pivotal issue: whether the Fourth Amendment protects cell phone location data, which the government acquires without a warrant.
• Quote: “If you took this third party disclosure rule... and applied it to the digital age, privacy would be dead.” — David Cole (19:50)
• Cole anticipates the Court will recognize the unique threats digital technology poses to privacy rights (20:49).
• Lithwick raises public complacency about privacy (21:53), but Cole is optimistic people still value privacy, especially from government oversight (22:26).

7. Surveillance, Social Media & Political Activism

• Cole emphasizes how government access to digital info threatens protest and organizing, citing ACLU action against Facebook data searches of Trump protesters (25:11).
• Quote: “To do that, we have to also have an assurance that the government can’t... have free access to every aspect of our most personal lives.” — David Cole (25:44)
• Recalls Supreme Court skepticism when government claimed it could track anyone, including justices, without suspicion (Jones v. United States, 27:55).

8. The Travel Ban Litigation (28:24)

• The administration’s Muslim-targeted travel bans are likened to a game of “constitutional whack-a-mole” as successive versions are challenged and revised (28:24).
• Cole argues the core issue—impermissible religious animus—remains despite cosmetic changes to the ban, and that courts should not defer blindly to executive actions (31:40, 33:25).

9. Jennings v. Rodriguez & Immigrant Detention (35:13)

• Case questions if immigrants in removal proceedings can be detained indefinitely without a hearing.
• Cole stresses the constitutional necessity for a hearing when detention becomes prolonged, drawing parallels to due process in criminal law (37:50).
• Government position: only detentions extending up to 20 years might violate due process—a stance Cole finds untenable (38:37).

10. The Power of Citizen Activism

(Especially as reflected in Cole’s book, Engines of Liberty)

• Legal change is often driven not by courts but by sustained, organized citizen activism (39:25).
• Quote: “What changed was the world changed. And the world changed not by happenstance, but by mostly gay and lesbian folks and their allies... thinking about a long-term campaign to change American attitudes.” — David Cole (40:07)
• Cole expresses hope, citing unprecedented levels of engagement since the 2016 election. The ACLU’s membership quadrupled, reflecting public commitment to defending civil liberties (41:51).
• Quote: “At the end of the day, that is... our ultimate salvation.” — David Cole (43:02)

Notable Quotes and Memorable Moments

• On the irreversibility of robust DOJ reversals:
  “It comes at considerable cost to the legitimacy of the Justice Department when they reverse course so dramatically...” — David Cole (05:22)

• On privacy and government power:
  “Google can send you ads that you might find annoying, but the federal government can lock you up.” — David Cole (23:08)

• On small-c conservatism of courts vs. their role as checks on power:
  “The very core definition of the judicial role is to act as a check against executive branches and legislative branches that exceed their authority.” — David Cole (33:30)

• On hope and activism:
  “We have never seen more... citizen engagement, more citizen activism around basic civil liberties and civil rights.” — David Cole (42:20)

Timeline of Important Segments

| Timestamp | Segment | |---|---| | 00:16 | Supreme Court term overview & cases to watch | | 01:44 | Court's composition change and its significance | | 02:25 | ACLU as law firm for the resistance | | 05:17 | DOJ’s shifting positions and court reaction | | 06:59 | Masterpiece Cakeshop case breakdown | | 11:44 | Voting rights and Ohio voter purge case | | 15:04 | Why voting cases matter for democracy | | 17:33 | Carpenter v. United States and smartphone privacy | | 21:53 | Public attitudes toward privacy in the digital age | | 25:11 | Surveillance, social media, and activism | | 28:24 | Travel ban litigation—ongoing battle and legal strategy | | 33:25 | Courts as checks on executive ambition | | 35:13 | Jennings v. Rodriguez—immigrant detention without hearings | | 39:25 | Engines of Liberty: citizens as the ultimate defenders of constitutional rights | | 43:57 | Close of interview; Cole’s final thoughts |

Episode Tone & Language

• Informed, urgent, occasionally wry—Lithwick and Cole blend deep legal knowledge with accessible, vivid explanations and a sense of civic responsibility.
• The episode is both analytical and motivational, containing direct appeals to the importance of being informed and engaged.

Summary

For listeners seeking a comprehensive primer on the Supreme Court’s 2017 “momentous” term, this episode is essential. David Cole demystifies the complex legal battles surrounding key civil liberties and lays out a compelling case for why courts—and more importantly, engaged citizens—matter now more than ever. The episode is a rallying call for vigilance and participation in the face of shifting political winds and foundational challenges to rights and freedoms in America.