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

Episode: The Supreme Court’s Charm Offensive

Date: September 25, 2021

Episode Overview

This episode, produced in partnership with the Texas Tribune Festival, brings together host Dahlia Lithwick and the co-hosts of the Strict Scrutiny podcast—Leah Litman, Melissa Murray, and Kate Shaw—for a rapid, comprehensive panel. Together, they break down the extraordinary recent term of the U.S. Supreme Court, discuss the seismic developments over the summer, and preview the momentous cases coming up in the next term, including those concerning abortion, gun rights, and possibly affirmative action. Central threads include analysis of the Court’s controversial use of the "shadow docket," the political optics of justices’ public statements, and the institution’s claims to legitimacy amid mounting criticism.

Key Discussion Points and Insights

1. The Changing Supreme Court: A Massive Misperception?

Conventional Wisdom vs. Reality

• Dahlia Lithwick sets the scene: The Court is often described as having shifted from a 5-4 conservative majority to a 6-3 "supermajority" with the addition of Justice Barrett. Many in the media have depicted recent decisions as centrist or unanimous (06:06–06:43).
• Leah Litman strongly disagrees, stating this view is a "massive misperception." She points out that under the new configuration, conservative justices dramatically altered the law—particularly in religious liberty and property rights—often via the shadow docket. Key moves include rolling back public health measures and expanding takings law, shifts that would not have happened with John Roberts in the median position (06:43–08:27).

"The idea that this past term was a moderate centrist court is a very bad misperception and ignores how the court also changed the law, not just on the shadow docket, but also in some of the cases that flew under the radar and shouldn't have."
— Leah Litman (07:32)

2. Understanding the "Shadow Docket" (08:27–13:00)

• Kate Shaw explains the shadow docket—decisions made outside formal argument and opinion, often rapidly and without full transparency. Use of this docket increased dramatically during the Trump administration, giving the government extraordinary emergency relief and bypassing normal deliberative processes. This trend has only grown, enabling high-impact changes without the scrutiny or reasoning of formal opinions.

"I'm actually okay with that [the shadow docket sounding nefarious] because I think that the court's use of it, especially in the last year, has been nefarious and should be deeply troubling to anyone who cares about transparency, accountability, democracy..."
— Kate Shaw (09:30)

• Raises alarm over selective intervention—aggressively exercising power to protect certain constitutional rights (e.g., religious liberty), while notably declining to act on others (notably abortion).

3. SB8 and the Court's Response: A Seismic Shift in Abortion Rights (13:00–21:16)

Texas’s SB8

• Melissa Murray provides an overview of Texas SB8: a law designed to ban most abortions at about six weeks, enforced by private citizens rather than the state. This removes the typical route for pre-enforcement lawsuits, effectively insulating the law from federal court review and allowing it to take effect despite established Supreme Court precedent (14:44–18:02).

"Texas has done something that is almost fiendishly clever. And I don't use the term clever in a good way, but like in a really pejorative way. They have actually taken the state out of the enforcement business here... So it is a completely privatized enforcement scheme, and it was done purposely to avoid federal court review."
— Melissa Murray (15:19)

Supreme Court’s Inaction and Its Implications

• The Supreme Court allowed SB8 to go into effect by declining to intervene via a late-night shadow docket order. The panel underscores the decision’s significance as both a procedural and a substantive blow to abortion rights.
• Leah Litman notes ongoing irreparable harm: every day, women are denied access to abortion—a loss that cannot be remedied even if the law is eventually struck down. She is skeptical that the Biden administration’s efforts will be effective given the current Court's positions (19:02–21:16).

4. The "Charm Offensive": Justices Insist the Court Isn't Political (21:16–27:43)

• Dahlia raises the phenomenon of several justices—Stephen Breyer, Amy Coney Barrett, and Clarence Thomas—publicly insisting that the Court is not political. The panel discusses the optics, motives, and implications of these claims, particularly against the backdrop of historic low public approval (22:40).
• Kate Shaw sees these statements as responses to declining legitimacy and public trust, as revealed by recent polls: "The Court pretends it's insulated from politics, [but] it does care about public opinion, and it is pushing back." (23:13)
• Melissa Murray criticizes Justice Barrett’s speech, especially the optics of denying partisanship while appearing with Mitch McConnell—the Senate leader most responsible for politicizing Supreme Court appointments (24:39).
• Leah Litman is blunt: "Justice Thomas and Justice Barrett are the guy in the hot dog suit meme, right? Like we're all trying to find the guy who did this..." She further slams Justice Breyer’s apolitical posturing and book tour given the Court’s actions on SB8 (26:04–27:43).

"The idea that Justice Barrett would say the court isn't political after being introduced at a center named for Mitch McConnell is an insult to the intelligence of every sentient being on the face of this earth."
— Leah Litman (26:15)

5. Looking Ahead: Major Cases on the Docket (27:43–34:50)

Dobbs v. Jackson Women's Health Organization – Mississippi Abortion Law

• Kate Shaw underscores the historic stakes: The Mississippi case asks the Court to directly revisit or overturn Roe v. Wade, with the state shifting its arguments to demand reversal after Justice Barrett joined the bench. Enforcement of the Texas law (SB8) signals the Court’s willingness to allow states to severely restrict or eliminate abortion access, regardless of precedent (28:35–30:07).

"By the end of June, you know, Roe may well no longer be the law [of the land], whether formally or functionally."
— Kate Shaw (29:57)

Guns – New York State Rifle & Pistol Association v. Bruen

• Melissa Murray discusses the upcoming challenge to New York’s restrictions on carrying concealed firearms. The likely outcome could dramatically expand Second Amendment protections, potentially invalidating similar laws in other states and reshaping gun rights (30:33–32:35).

"If the Court moves in the direction that I imagine... to strike down the New York gun control law, it will dramatically reshape the landscape of Second Amendment rights."
— Melissa Murray (30:54)

Affirmative Action – Harvard Admissions Case

• Leah Litman explains that the Court is being urged to revisit precedents permitting affirmative action in university admissions. The current majority may be ready to curtail or end such practices (32:35–34:50).
• She warns that even if the Court formally preserves precedent, it may hollow out protections in practice.

Notable Quotes & Memorable Moments

• Leah Litman:
  "The reality is, every single day since September 1st, there will be some people in Texas who cannot get abortions so long as SB8 remains in effect...every day there are harms that are never going to be cured no matter what happens with this lawsuit." (19:12)

• Melissa Murray:
  "It takes real chutzpah to stand at a podium and say that the Court is not political when you are making that statement while flanked by Senator Mitch McConnell..." (25:08)

• Kate Shaw:
  "I'm actually okay with that [the shadow docket sounding nefarious] because I think that the court's use of it...has been nefarious and should be deeply troubling to anyone who cares about transparency, accountability, democracy..." (09:30)

Timestamps for Key Segments

• 00:00–06:43: Setting the scene—introductions, recent Court changes, big-picture questions
• 06:43–08:27: How the rightward shift is already transforming doctrine (Litman)
• 08:27–13:00: Dissecting the shadow docket—definitions, dangers, and expansion (Shaw)
• 13:00–21:16: SB8 explained; Court’s refusal to stop Texas abortion ban and its consequences (Murray, Litman)
• 21:16–27:43: The justices’ "charm offensive"—public relations, legitimacy, and optics (All)
• 27:43–34:50: Preview of next term—abortion (Dobbs), guns, and affirmative action cases
• 34:50–35:41: Closing thoughts and tribute to panelists’ scholarship

Tone & Style

The conversation is forthright, rapidly paced, and at times darkly humorous. The panelists blend deep legal analysis with wry observations on the real-world stakes and institutional politics of the Court. While grounded in expertise, the tone is accessible, urgent, and occasionally biting—especially on the Court’s public image campaigns and the hard realities facing affected Americans.

Summary Takeaway

This episode spotlights a Supreme Court both empowered by and vulnerable to its own legitimacy. Through the panel’s sharp analysis, we see a Court reshaping law through less visible channels, issuing historic decisions with little transparency, and strategically recasting its image as public backlash grows. As cases about abortion, guns, and admissions loom, the season ahead promises not just doctrinal change, but potentially a challenge to the Court’s role at the heart of American law and politics.