The Term the Court Stopped Pretending

Summary

Amicus With Dahlia Lithwick | "The Term the Court Stopped Pretending" – July 11, 2026

Episode Overview

This edition of Amicus gathers an "All Star Roundtable" at the end of another monumental Supreme Court term. Host Dahlia Lithwick is joined by Mark Joseph Stern, Sherrilyn Ifill (Howard University/NAACP LDF), Nicholas Bowie (Harvard Law), and Steven Vladeck (Georgetown Law), to dissect what many consider an unprecedented term marked by aggressive exercises of judicial power, unconcealed partisanship, and a departure from even the pretense of legal or constitutional consistency. The group analyzes the Court’s substantive decisions on voting rights, executive power, racial justice, Congressional authority, and the very definition of American identity—anchoring their commentary in urgent concerns about democracy, legitimacy, and the relevance of law itself.

---

Key Discussion Points and Insights

1. Just How Bad Was This Supreme Court Term? ([03:53]–[12:13])

• Measures of “Worst Term-ness”
  • The panel struggles to quantify the magnitude but agrees the term was exceptionally harmful, not just in results but in the Court's new shamelessness.
• Loss of Judicial Virtues
  • Sherrilyn Ifill: This Court abandoned “any sense of consistency, stare decisis, judicial restraint, discipline, unanimity. All of the things that we think of as virtues...that would cabin judges from being able to exercise the kind of extraordinary power that they do in an abusive way.” ([04:41])
• Defiance of Congressional Will
  • Nicholas Bowie traces a historical throughline: the Court is meant to enforce, not defy, Congressional law. This year, statutes like the Voting Rights Act or campaign finance limits were “torn down...now sitting in library stacks as if they don’t exist because five or six justices this term said they don’t like them.” ([07:39])
• Statistical Imbalance
  • Steven Vladek: Even if defenders point to rare positive rulings, “that's three in a term in which, you know, I can count 25, 30, 35 rulings that I think were deeply problematic.” ([09:24])
  • The term’s standout characteristic is the “shamelessness” of decision-making, the lack of effort to even rationalize inconsistencies.

2. Themes: Centralization of Judicial (and Executive) Power ([12:13]–[14:45])

• Restructuring Government Power
  • The Court is “seizing power for itself while undermining federal district courts...disempowering Congress, disempowering lower courts, empowering the executive but only as sort of the only branch that’s left, but really preserving for the court” supremacy (Vladeck, [12:47]).
  • Illustration: Inconsistently siding with executive aggrandizement, except where financial or political preferences (e.g., Federal Reserve) diverge.

3. Assault on the Reconstruction Amendments and the “Colorblind Era” ([14:45]–[26:12])

• Rewriting Racial Justice
  • The Court assumes the power to reinterpret or diminish the Reconstruction Amendments (13th, 14th, 15th).
  • Ifill gives a detailed, impassioned account of what’s lost: rigorous, evidence-driven litigation that exposes real racial discrimination is replaced with the justices’ own “hunches” about whether racism remains a problem:

    "All of these are hunches that they are bringing to the table for the world that they want...There’s no point in litigating these cases if the Supreme Court’s just going to, on their own hunch, decide all the stuff that you took all the effort to prove." ([17:45])

• Eviscerating Congressional Power
  • Even explicit assignment of “enforcement power” to Congress in the 14th and 15th Amendments is overridden in practice.
  • Razor-thin distinctions and “gaslighting” make a mockery of legislative and judicial process.

    "[The Court] shamelessly tell you and Gaslight you, you don’t see what you see." – Ifill ([24:45])

• Colorblindness as Gaslighting
  • The Court’s proclamation that “our Constitution is colorblind” (a factual and historical falsehood) is used to prevent addressing or remedying racial discrimination:

    “There is nothing colorblind about our Constitution, not just about the Reconstruction Amendments, but from the beginning.” – Ifill ([25:48])

4. Congress and the Myth of Correction ([30:29]–[38:11])

• Perennial Defiance
  • Bowie outlines how Congressional effort to correct the Court’s wrongs (e.g., with the 1982 amendments to the Voting Rights Act) has been repeatedly stymied by the Court's insistence on its own interpretive (and sometimes policy-oriented) supremacy.

    "...it really just does not matter what Congress does. The Supreme Court is going to invalidate that law." ([35:41])

• Institutional Entrenchment
  • The Court’s current mode means even democratically unassailable reforms (e.g., ending gerrymandering, protecting voting rights) can be voided by a five-justice majority.

5. The Shadow Docket and Unaccountable Power ([38:15]–[43:31])

• Emergency Orders as Policy Tools
  • Vladeck: The so-called “shadow docket” (emergency, unsigned decisions) enables the Supreme Court to quietly effect enormous policy changes and preempt Congressional will—often without clear reasoning, sometimes late at night, and before the country wakes up.

    “...it's voting the Justices preferences and then backfilling some kind of rationalization...shockingly unpersuasive in the emergency.” ([41:30])

• Examples
  • The Court greenlighting Trump’s refusal to spend billions in foreign aid ([39:35]), undermining appropriations power, and a string of unsigned, statistically minimal but substantively vast election interventions.

6. Redefining Who Counts as American ([45:53]–[52:08])

• “Stephen Miller Term” for Immigration
  • The Court, with the notable exception of a narrow birthright citizenship decision, sided with exclusion on asylum, green cards, TPS—a move Stern dubs “a referendum on what it means to be American in the MAGA multiverse.” ([45:53])
• Birthright Citizenship and Its Undermining
  • Even as the Court rejected Trump’s executive order to end birthright citizenship, a 5-4 split left open the possibility that Congress could do so—an “alarming” signal, Ifill argues, that undermines security for millions of Americans ([47:00]). The delay and process itself legitimized formerly fringe arguments.

7. Culture Wars and Judicial Caprice ([51:13]–[57:06])

• Guns, LGBTQ Rights, Religion
  • Cases nominally about historical tradition are decided on shifting standards (“history and tradition” tests) that disguise naked policy preferences.
  • Bowie (on Hawaii gun law): “...the court can manufacture an exception to its own rule...it does not feel like a fair tribunal.” ([52:08])
• Sleeper Case: Landor v. Louisiana Department of Corrections
  • Vladeck spotlights a religious liberty case where the Court, through technical means, strips Congress of power to subject state officials to accountability, calling it “completely insane.” ([55:04])

---

Memorable Quotes & Moments

• Ifill’s Indictment of the Court’s Reasoning:

  “They’re relying on their own feelings. So that’s 1, 2. The piece about Congress is really important because these three amendments...have clauses in them that are designed to focus on who has the power to actually enforce these amendments...And the Supreme Court has arrogated to themselves the power to decide what that actually means, because Congress did it.” ([19:00]–[21:30])

• Vladeck on the Shadow Docket:

  “...what was happening on the emergency docket was a harbinger of what was coming on the merits docket...that’s what this term was. The infection of that slaughter started on the emergency docket.” ([42:59])

• Bowie on Objective Law and Policy:

  “...to the extent we accept that these justices should have the final say...the Court’s rules are not objective at all. And...is a real lack of consistency in how it is applying the rules that it says it is applying.” ([34:12])

• Stern’s “Stephen Miller Term”:

  “This was the Stephen Miller term, where absolutely every effort to make America whiter and more Christian and more inaccessible and more frightening was all thrown at the wall. And with one important exception, we all acknowledge the birthright citizenship ruling, these efforts were blessed by the court.” ([45:53])

• Ifill, on Legal Cynicism:

  “What we are experiencing right now, in my view, is not law...I could guess who was going to win. And I was right every time. And at the end of that, I thought, okay, well, that’s not law.” ([58:15])

• Vladeck on Levers of Accountability:

  “We have to talk about...making the Court accountable again, getting to a point where the Court can’t just interpret a statute to mean completely the opposite of what Congress intended without repercussions.” ([62:49])

---

Timestamps for Important Segments

• [03:53] – “Is this the worst term?” The panel weighs the Court’s record.
• [09:24] – Statistical overview: Three moderate decisions vs. dozens of regressive rulings.
• [10:40] – “Shamelessness” and lack of persuasion as new features.
• [14:45] – Historic and ongoing assault on Reconstruction Amendments.
• [19:30] – Ifill’s detailed analysis of voting rights litigation and the undoing of legislative safeguards.
• [26:12] – Congress’s power gutted: can Congress “just fix it?”
• [38:15] – Shadow docket discussion and its effects.
• [45:53] – Redefining American identity; the “Stephen Miller term” in immigration law.
• [47:00] – Birthright citizenship and its precarious future.
• [52:08] – Guns, culture wars, and inconsistent judicial methodology.
• [55:04] – Sleeper cases: Religious liberty undermined in prisons.
• [57:06] – What can be done? The panel offers “to-do” lists for reform and democratic renewal.

---

Recommendations and The Way Forward ([57:06]–[64:19])

• Ifill
  • Immediate Congressional hearings on Supreme Court reform if circumstances allow.
  • Move beyond discussion to “concrete efforts to understand how this court needs to be reformed.”
• Bowie
  • Congress must not only protect democracy but restructure it—through a new Voting Rights Act, proportional representation, and explicit legislative supremacy.
• Vladeck
  • Congressional oversight and budgetary/power levers should make the Court again “look over its shoulder”—restoring historic accountability.

---

Recurring Themes

• The Supreme Court is exerting unchecked power, frequently without intellectual rigor or consistency, and with little regard for Congressional or public will.
• Once-cautious or merely conservative lines have been crossed into aggressive, transformative acts—shrinking democracy, re-imagining core constitutional provisions, and narrowing who can claim American rights.
• The public is increasingly cynical and powerless; robust, creative, and immediate reforms are needed, from Congressional muscle to democratic renewal.

---

Notable Segment: The “Breakfast Table” Tradition ([64:31]–[66:21])

• The roundtable is an homage to a long-running Slate feature—“the breakfast table”—where legal minds would write to each other conversationally. It’s a “beloved, cherished feature” that continues here in audio form.

---

Tone and Language

• Candid, urgent, highly informed, and often impassioned—with moments of exasperation, frustration, and (especially from Ifill) moral outrage at the Court’s arrogation of power and abandonment of judicial virtues.

---

For Listeners Who Haven’t Heard the Episode

This podcast is an in-depth, critical overview of a Supreme Court term that, in the view of leading legal experts, marked a departure from both historic norms and modern expectations of judicial legitimacy. The conversation combines legal analysis, political context, history, and reform proposals—offering a comprehensible yet sophisticated map of where the Court has brought American democracy, and why it matters to every citizen.

---

End of Summary.

Transcript

[Dahlia Lithwick]

We all belong outside.

[Sherrilyn Ifill]

We're drawn to nature.

[Dahlia Lithwick]

Whether it's the recorded sounds of the ocean we doze off to or the succulents that adorn our homes, nature makes

[Sherrilyn Ifill]

all of our lives, well, better.

[Dahlia Lithwick]

Despite all this, we often go about

[Sherrilyn Ifill]

our busy lives removed from it, but

[Dahlia Lithwick]

the outdoors is closer than we realize. With Alltrails, you can discover trails nearby

[Sherrilyn Ifill]

and explore confidently with offline maps and on trail navigation.

[Dahlia Lithwick]

Download the free app today and make the most of your summer with Alltrails Marketers. You know that feeling when your creative

[Sherrilyn Ifill]

clicks, when that social post sends engagement

[Dahlia Lithwick]

through the roof, when your outside of

[Sherrilyn Ifill]

the box campaign hits ROI positive, when

[Dahlia Lithwick]

a personalized homepage turns prospects into customers.

[Sherrilyn Ifill]

It's utter marketing bliss.

[Dahlia Lithwick]

Contentful helps you create tailored omnichannel experiences without working overtime.

[Sherrilyn Ifill]

No stress, no limits, only possibilities. Get the [e-mail].

[Dahlia Lithwick]

This is Amicus Slate's podcast about the courts, the law, and the Supreme Court. I'm Dahlia Lithwick.

[Mark Joseph Stern]

And I'm Mark Joseph Stern.

[Nicholas Bouie]

The court has just torn all of these really important federal statutes down, and so we're entering the midterms this fall in a really dangerous place.

[Sherrilyn Ifill]

It is absolutely stunning and horrifying in its scope, in its hubris, in its destructiveness, and in the catastrophic and outrageous way that it countermands the work of extraordinary people who had come together when this country was at its most broken to figure out what was the constitutional infrastructure needed to stitch it back together.

[Steven Vladek]

That, to me, is what makes this term different from the immunity term or the Dobbs Bruin term or other catastrophic terms of the last 15, 20 years. It's almost like they don't think they have to try to convince anyone anymore that there are principles behind these decisions.

[Nicholas Bouie]

And what it comes down to is, you know, John Roberts likes the Fed and John Roberts does not like the Federal Trade Commission.

[Sherrilyn Ifill]

That's it.

[Dahlia Lithwick]

Welcome to our annual End of Supreme Court Term All Star Roundtable that we

[Mark Joseph Stern]

also call the breakfast table.

[Dahlia Lithwick]

Real Amicus heads know why we call it that, and if anyone in our live online audience knows why, pop your answer in the chat now so we can explain all at the end of this episode.

[Mark Joseph Stern]

Let's jump right in and introduce our panelists.

[Dahlia Lithwick]

Sherrilyn Ifill is a civil rights lawyer and founding director of the 14th Amendment center for Law and Democracy at the Howard University School of law. From 2013 to 2022, Sherrilyn served as the President and Director Counsel of the NAACP Legal Defense and Educational Fund Incorporated ldf, the nation's premier civil rights law organization fighting for racial justice and equality. Welcome, Sherilyn thank you.

[Mark Joseph Stern]

Nicholas Bouie is the Louis D. Brandeis professor of Law at Harvard Law School. He is a historian who teaches courses in federal constitutional law, state constitutional law, and local government law. His research focuses on critical legal histories of democracy in the United States. With Daphna Renan. She he is the author of the forthcoming book How Rule by the Court Replaced Government by the People, which will come out in September. Welcome to the podcast, Nico.

[Nicholas Bouie]

Thanks for having me.

[Dahlia Lithwick]

Steven Vladek is a professor of law at the Georgetown University Law center and is a nationally recognized expert on the federal courts, the Supreme Court, national security law, and military justice. Steve is author of the New York Times bestselling book the Shadow how the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, and he also writes an indispensable newsletter. One first welcome, Steve.

[Steven Vladek]

Thanks for having me.

[Dahlia Lithwick]

So I think I wanna start by suggesting that I've heard a lot of pundits saying that this is the worst term since the immunity decision. Some say it's the worst term since Dobbs. I've heard folks say this is the worst term since Dred Scott, and I actually don't even know how one measures worst term ness. But I'm pretty sure that the announcement in the birthright citizenship case on the very last day blank some of the impacts of how really serious this term was. So I want to put aside the case that shockingly upheld a core constitutional guarantee by a 5 to 4 vote and ask each of you, maybe we'll start with you, Sherrilyn. How bad was this past term? In the aggregate?

[Sherrilyn Ifill]

Plenty bad. This was very bad. And I think it's important, you know, I actually don't leave out the birthright citizenship case because to understand how bad this term was, you can't just count up the decisions. You have to also look at the how how the court decided these cases. You know, what was the split, if there was a split, and what were the I can't think of the word the license that the court took to get to the decisions that they made. And actually that's what to me, kind of takes this term really off into the stratosphere. Some of the decisions are catastrophic and terrible, but of the reasoning of even the decisions that seem to be okay demonstrate that this court has separated itself from any sense of the need for consistency, for respecting stare decisis, for judicial restraint, for discipline, for unanimity. All of the things that we think of as virtues of judicial decision making that would cabin judges from being able to exercise the kind of extraordinary power that they do in an abusive way.

[Dahlia Lithwick]

How about Unika?

[Nicholas Bouie]

Yeah, I agree with Sherrilyn that in order to understand how bad this term was, we need to have a sense of, like, what should the Supreme Court be doing in the first place? And the book that I've written with my colleague Daphne Renan called Supremacy goes through the history of the Court's power as well as what did people think of it, from abolitionists through the civil rights movement and to the present. And we drew a lot of inspiration from the Congresses that wrote the 13th, 14th, and 15th Amendments after the Civil War. And one of their arguments at the time was that the role of the Supreme Court is to enforce federal law. It is not to defy federal law. The people who wrote the 14th Amendment wanted federal courts to go out and enforce that amendment against states or presidents or anyone else who would defy it. But they did not want the Court itself to interrupting or striking down Congress's legislation. And I think that that understanding that the point of the federal judiciary is to enforce Congress's understanding of what the Constitution means is a good way of understanding the cases. This term it actually maps on pretty cleanly, because a lot of the cases that people really like that the Court has done involves the court enforcing the federal legislation. So the Learning Resources decision end of last year, that enforced the federal law governing tariffs and said it did not permit the President unilaterally to impose tariffs on the entire planet. The National Guard statute that the Court interpreted to say the president can't just deploy the National Guard where he sees fit, as well as the birthright citizenship case, which, you know, Congress for years has interpreted the 14th Amendment to say everyone born here basically is a citizen. And when President Trump said no, he was not just defying the 14th Amendment, he was also acting in defiance of these federal laws. But the real damage that the Court has done this year involves the court taking federal legislation and just saying, I don't care. So the Voting Rights act, the most important civil rights statute in US History, the Court saying, even though we understand what Congress meant by that statute, we're just going to interpret it differently and say it can't be interpreted the way Congress thinks. So now we have this crazy system where states are passing laws, trying to make it as difficult as possible to vote, and Congress has said, don't do that. But the court's acting as if that statute doesn't exist. Same with statutes protecting federal officials. From being fired, statutes that prevent people from just spending billions of dollars in elections. The Court has just torn all of these really important federal statutes down. And so we're entering the midterms this fall in a really dangerous place where all of these laws Congress has passed to protect democracy, laws that Congress has thought was constitutional, laws that date, you know, hundreds of years, all of these laws are just now sitting in the library stacks as if they don't exist because five or six justices this term said they don't like them. And the constitutional interpretation that the Court is applying is not consistent, it's not objective, it's really policy driven. And that's the real danger of judicial supremacy that this Court has really unleashed this term.

[Mark Joseph Stern]

Steve, anything to add?

[Steven Vladek]

Just really quickly. I mean, I think the common themes in what both Nico and Sherilyn said first, you know, denominators matter. And so for all of the folks out there on the right and who try to defend the Court who say, well, look at birthright citizenship, look at tariffs, look at the National Guard case, you know, that's three in a term in which, you know, I can count 25, 30, 35 rulings that I think were deeply problematic from a institutionalist perspective, from the perspective Nico mentioned. So, you know, one, let's do basic statistics again. But two, to pick up on Nico's last point, there's a shamelessness to how the Court behaved this term that, you know, I'm sure lots of folks sort of thought they felt in prior terms, but that, you know, almost like they weren't even trying to persuade people who weren't already persuaded anym. And, you know, the best example of that to me is the sort of complete lack of humility in Chief Justice Roberts opinion in the Slaughter case about just how big of a hole the Cook case handed down at the exact same moment blows in the Slaughter case. So in Slaughter, the Court says the President has to have all of the executive power, period, full stop, end of story. Therefore, he can fire everybody. And at the exact same moment, the Court says, oh, but the Federal Reserve is different for all of these interesting, questionable, dubious historical reasons. You don't have to be a law professor to understand the logical tension there. And yet John Roberts really didn't try very hard to persuade anyone that that was a reasonable distinction. So you multiply that. Right? One other flashpoint just to sort of show where we are. The Texas redistricting case, which got sort of run over by Calais in Alabama. The Court writes five paragraphs in November or December to justify freezing a Trump appointed district judges 200 page decision about why Texas had acted with, you know, racially discriminatory intent in how it redrew its maps last summer. And the Supreme Court first of all sort of pauses that with five paragraphs, only two of which were analysis, and then on the merits in April says, oh, well, now that we have the full case before us, we're just going to summarily reverse the district court for the reason set forth in our, you know, five paragraph scribble in December. Like, it's the hubris of this, it's the shamelessness of this and you know, it's not the bottom lines. It's really just sort of the behavior of the justices after Clay rushing to put all those decisions into immediate effect. That to me is what makes this term different from the immunity term or the Dobbs Bruin term or other catastrophic terms of the last 15, 20 years. Because it's almost like they don't think they have to try to convince anyone anymore that there are principles behind these decisions.

[Mark Joseph Stern]

So let's start with the intangibles and then work our way down to the actual stakes on the ground. Absolutely. Foundational restructuring again this year of how the government works. Shrinking of congressional authority, as Nico pointed out, sanding down judicial review, disempowering blue states while letting red states go hog wild. Aggrandizing the executive, diminishing the regulatory state, disempowering lower courts. I could go on. We will go on in the course of this conversation. But Steve, just to stick with you for a moment, what sort of leaps out here that you might wanna flag as a top line takeaway?

[Steven Vladek]

I mean, it's all about judicial power, and not just judicial power in general, but the Supreme Court's power in particular. I mean, right? You have the court in the same series of rulings, seizing power for itself while undermining federal district courts, Federal district courts, who by the way, are on the front lines, right. Of an unprecedented flood of really high stakes, really important, really messy cases where you have judges from across the ideological spectrum pushing back against this admin. And the Supreme Court's like, nope, we're good. I know it's very easy for folks to sort of say, no, it's all about executive power. But again, I mean, I'm going to beat this horse a couple times today. Slaughter and Cook is actually the perfect embodiment of how it's not about executive power, it's about the Supreme Court's authority for executive power, where, hey, we'll give the executive branch, all this power it's never, never had before. But we'll also say not so fast with the Federal Reserve. So, Mark, to me, it's the power dynamic here. As you say, disempower in Congress, disempowering lower courts, empowering the Executive, but only as sort of the only branch that's left, but really preserving for the court. And this one other sort of really small example of this, this case got totally run over by everything that's happened since. But the court had this really technical case in the fall about standing to challenge election rules, a case called Bost. And the court just makes up a new rule that says, oh, if you're a candidate for office, you automatically have standing to challenge how the votes are counted. Even if, like you are, you know, a write in candidate who got 27 votes in a 10 million vote election. Right. Like why, Mark? To empower the courts to give courts the ability and the Supreme Court in particular, the ability to do what it wants, when it wants. And I think this is the real overarching theme here, which is this is a court that just doesn't care. It's not looking over its shoulder. It can do what it wants. You know, Leah Littman's right. YOLO really is, I think, the Court that only lives once and doesn't seem to mind that, you know, others will try to live after it.

[Dahlia Lithwick]

This was also just a remarkable term for either rewriting, erasing, or just calling time on the Reconstruction Amendments. And I'm thinking specifically about Calais and Milligan this term. But following on from the affirmative action decision a few years back, we've moved to this new era, this quote unquote, colorblind era. And this was decided along purely ideological lines by a Republican appointed supermajority that includes, let's just say, at a stolen seat on an unelected court. And I wonder, Sherrilyn, if you can kind of pan back and describe what the Court's decisions declaring America to be blind to race now and blind to racism now entailed and what the implications are.

[Sherrilyn Ifill]

Yeah, I actually think that Calais and Allen vs. Milligan are at the same time an assault on the Reconstruction Amendments and on our entire system of litigation and law. Some of it in the ways that Steve has already described. Right. Taking power unto themselves. But let's think about what they did. First of all, this court has taken upon itself the power and authority to say what the Reconstruction Amendments mean and to say whether and how, if at all, they have continuing relevance to the landscape of this country. And they started doing that already in Shelby county versus Holder, right? When they decided that the south has changed. These are not empirical findings. Right? This is the sense. They have the hunch. And we see them doing it in Calais and Milligan as well. They're saying once again that, you know, racism is not what it was. The south has changed. Black voters have a chance to elect representatives of choice Party seems to be just as important as race. All of these things are not findings. And when you're reading Justice Alito's decision in Calais and he is citing their musings in earlier cases, sometimes dissents just about what they feel. So the first thing, and I wanna emphasize this because we talked about district courts and we talked about Congress taking the power actually away from. From us, from litigators, from those who bring these challenges in court. The reason why, and you know this, Dalia, I've always emphasized the importance of district court judges is because, particularly when you're bringing cases on behalf of disfavored clients, you're bringing claims that most of the judges that you're bringing them before know absolutely nothing about. And you have to actually present to them this world in which these kinds of things can happen, in which on a job, a supervisor can call a black man, boy, and think that it's fine, Right? In which, you know, legislators can meet in a room and decide that they're going to carve out this many black voters to make this district less viable for black voters to be able to elect a candidate of choice, you have to convince them of that. And how do you convince them of that? With just, you know, being earnest and passionate? No. If you were bringing a claim under the Voting Rights act, you have a historical expert, you have usually two political scientists, experts, one of whom has done a pretty serious regression analysis of elections to determine that voting is racially polarized. And you've got a demographer who has looked over the maps and who has determined that black voters would have a chance to elect a candidate of choice in a fairly drawn district. So you put all of that together. Then you put the witnesses on who are my clients, right? The people from the communities that we represent who tell the story about how power operates, about what they saw, about what they learned about their effort to elect candidates of their choice. You may put candidates on who were unable to get elected and so on and so forth, because the Voting Rights act, in accordance with the test that is included in the Senate report, but also reiterated in the court's cases, is that you're doing a searching practical evaluation of the local political, social and cultural reality in that community. That's actually what is required. So that's what you're putting on. You know, this is what you're taking weeks out of your life to present before a district court. And then the district court is taking weeks out of his or her schedule to make a determination about whether you met the mark. And so when we say that this court is taking power away from the district courts, they're also taking power away from the concept of the litigation system, which is designed to educate the judge about something they don't know or the jury about something they don't know. And they're taking that away from us because they have a feeling that racism is not the same as it was. They have a feeling that Asian Americans may be discriminated against in race conscious admissions. They have a feeling that the south has changed. They have a feeling that we're punishing the South. All of these are hunches that they are bringing to the table for the world that they want. I want to make sure we just like center that because we're about to be obsolete. There's no point in litigating these cases if the Supreme Court's just going to, on their own hunch, decide all the stuff that you took all the effort to prove. And I say this as a, a civil rights lawyer. We never have any money. So we're paying, we gotta pay the experts. We gotta, you know, we gotta pay for transcripts, depositions, all that stuff for it to just, as you all said, evaporate into thin air because of the court's own feeling, not because our opponents put on a case with better facts. That's not what they're relying on. They're relying on their own feelings. So that's 1, 2. The piece about Congress is really important because these three amendments, the 13th, 14th and 15th amendments, the 13th amendment abolishing slavery, the 14th amendment ensuring birthright citizenship and equal protection of laws, and creating a complex system to try and tamp down and cabin the forces of insurrection that they recognized exist in this country. The 15th amendment saying that you cannot abridge the right to vote based on race, color or previous condition of servitude, you know, have clauses in them that are designed to focus on who has the power to actually enforce these amendments. There are enforcement clauses that says Congress shall have the power in the 14th and 15th amendment to enforce right the rights that are guaranteed in these provisions. So it doesn't get more explicit than that right In a constitutional amendment, we're saying, who has the power? And the Supreme Court has arrogated to themselves the power to decide what that actually means, because Congress did it. And so Calais and Milligan are really important because they involve the amendments to Section 2 of the Voting Rights Act. That was amended in 1982. It was amended in 1982 in response to a Supreme Court decision that erroneously interpreted the Voting Rights act and Section 2 of the Voting Rights Act. So in 1980, in Mobile vs Bolden, the Supreme Court said, you have to prove intentional discrimination. And this had not been the lay of the land in terms of litigating Section 2 cases until Mobile versus Bolden. And so civil rights activists came together and presented to Congress this effort, and Nico knows how Herculean this effort was to amend the Voting Rights act, which actually happened, once again, overwhelmingly bipartisan, signed by President Reagan. Now, President Reagan didn't want to sign it, and he didn't want to sign it because he had lawyers like Ed Meese and young lawyers in the Department of Justice, the point person being John Roberts, telling him that this was an absolute usurpation of power, that this could not go forward, that this was a quota system. And all of the internal emails are there in which Roberts is just saying, we have to stop this. Even after the House votes overwhelmingly for it on a bipartisan basis. Roberts is undaunted in his efforts to kill these 1982amendments, but he can't do it. And so we get this amendment to the Voting Rights Act. The Voting Rights act is a statute. Congress can amend their own statute. They can tell you, no, we meant this when we passed it, not that. And that's what they do when they amend the Voting Rights act. And then to just put a cherry on it, of course that amendment is challenged. And when it gets to the Supreme Court, the Supreme Court upholds the amendment in Thornburg versus Jingles in 1986, and really sets out the test that I was describing earlier that you use to litigate these cases. I started as a voting rights lawyer in 1988, not knowing what I was doing, But I had the guidance right of these tests. And I had at my back a recent amendment right to the actual and the Supreme Court affirming right, the constitutionality of that amendment. So that's how these cases have been litigated since 1982 and 1986. And now we come to the court and they tell you that they are updating. You know, it's like when you see a person, a woman or a Man who's had, like a radical facelift. And they say, oh, I just did some tweaks, you know, just freshened up, right? They say, we're just updating the formula. They create a whole new formula. They rewrite it. They rewrite what Congress did. They essentially strike down the 1982amendments, and they strike down their own precedent in Thornburg versus Jingles. And to make matters worse, to go back to Steve's point about the shamelessness, they say explicitly, we're not striking down Thornburg versus Jingles. We're not striking down the 1982amendments. We're just updating them. We're tweaking them. This is what Jingles really meant. It is this just outrageous conduct and behavior in which they not only arrogate to themselves the power, but shamelessly tell you and Gaslight you, you don't see what you see. And the last thing I'll just say is that what they create out of these two cases, because in Allen v. Milligan, you add an actual finding of intentional discrimination is that they also imperil the ability to bring successfully these claims under the 14th Amendment. They announced that our Constitution is colorblind, which they had announced in the affirmative action case, which is absolutely untrue. There is nothing colorblind about our Constitution, not just about the Reconstruction Amendments, but from the beginning, right? We've got a three fifths clause that counts enslaved people as three fifths of a person. We have the clause in Article one that continues the participation in the international slave trade until 1808. Like, we've got all kinds of things in the Constitution that are not colorblind. But when you get to the Reconstruction Amendments, they are meeting for the express purpose of incorporating 4 million black people as full citizens into the body politics and to destroy the caste system in this country. That's the purpose. That's not colorblind. But they announce it anyway. Our colorblind Constitution. And what they mean by that is you can't remedy racial discrimination. Because if you find racial discrimination and then in remedying it, you even think about race as part of that calculation. You think about maybe creating measures on an employment site where there's been discrimination that will increase the number of minorities or women who are hired or who are promoted, then you've thought about race and that's disqualified. And if in creating districts, you discover a racial gerrymander and you seek to correct that racial gerrymander, and by doing so, you are trying to do what the Voting Rights act said you had to prove, which is show that black voters can constitute the majority of a fairly drawn district, then you are thinking about rates and that makes you the racist and you are now violating the 14th amendment. It is stunning. It is absolutely stunning and horrifying in its scope, in its hubris, in its destructiveness, and in the catastrophic and outrageous way that it countermands the work of extraordinary people who had come together when this country was at its most broken to figure out what was the constitutional infrastructure needed to stitch it back together. Not one of these people on this Supreme Court are worthy of overcoming that project.

[Dahlia Lithwick]

Let's pause to hear from some of our sponsors. This episode is brought to you by Ground News. Here at Amicus, we read a lot about the Supreme Court, but it's not the only news we consume. And like you, we seek out different sources on the same subject to get the full story. Ground News is a great way to get down to the facts. It's an app and website that makes it easy to compare news sources, break free from algorithms, and think critically about what where you're getting your news. Recently I went to Ground News to learn more about the resignation of British Prime Minister Keir Starmer. Ground News had rounded up coverage from 40 different sources. According to the platform, 46% of the coverage is center or nonpartisan. But if you click right, you can see right leaning coverage that claims, quote, Keir Starmer offered Britain nothing. And if you click left, you'll see headlines lamenting that Keir Starmer is, quote, the latest casualty of the Downing street meat grinder. The Nobel Peace center called Ground News an excellent way to stay informed, avoid echo chambers and expand your worldview. Here's how to get started. Go to groundnews.comac to get 40% off their Unlimited Access Vantage subscription. That's groundnews.comac and you'll get 40% off the Vantage subscription whether you subscribe yourself or send it as a gift. Make sure to use our link so that they know that we sent you. That's groundnews.com ac. This episode is brought to you by Monarch. Summer is here and if you're anything like me, you've been planning a vacation that you're really excited about. But you don't want to spend that vacation worrying about whether you can actually afford it or whether you have to shop for instant coffee the last few days because you've hit some vague self created limit on good cafes. It's time to organize your finances now so you can enjoy that time off. And that's where Monarch comes in Monarch is the personal finance app that tracks everything accounts, investments, savings goals and spending. Get your first year of Monarch Core for half off just $50 with promo code Amica. Most apps only tell you what you've already spent, but Monarch helps you understand your monthly expenses and something I think is great and incredibly user friendly. Monarch uses cash flow visualizations and diagrams to help you understand where your money is going, and it can also flag spending spikes before they become a problem for you. Use code [e-mail] to get your first year of Monarch Core half off at just $50. That's 50% off your first year at monarch.com with code amicus. This episode is sponsored by BetterHelp. We talk about mental health more openly now, but asking for help can still feel hard, and BetterHelp's latest research confirms it. BetterHelp's 2026 State of Stigma report surveyed 2,000Americans and revealed that 85% of Americans believe getting support is wise, yet 74% say society discourages people from doing so. How can we sew up that gap that exists between believing in mental health support and actually seeking it? That's where BetterHelp comes in. With over 30,000 therapists, BetterHelp is the world's largest online therapy platform, having served over 6 million people globally. A short questionnaire can help match your therapy goals with the right provider, and if you aren't happy with your match, you can switch to a different therapist at any time from BetterHelp's tailored recommendations. Don't let stigma stand in the way of support. Start therapy with BetterHelp. Sign up and get 10% off at betterhelp.com Amicus that's better. H E L llp.com Amicus. Let's return now to our end of term panel discussion.

[Mark Joseph Stern]

I want to pick up on that theme of hubris because one of the main sort of lowlights of this term was the court's embrace of the unitary executive and rejection of Congress's conception of how the federal government is meant to be structured. So last week's show we talked all about the ways that the majority butchered history and Trump v. Slaughter. Steve talked about how Trump v. Slaughter doesn't make sense when held up right next to Trumpy Cook. And the court has just handed Trump all of this power, you know, that the framers never could have imagined with this one glaring exception. But you know, I've noticed over the last two weeks or so we hear a lot of claims that this is actually a fairly modest court, that this is not a court that overturns precedent all that often and that this is a court that strives to respect Congress's prerogatives. And I hear from defenders of the court, oh, if you have a problem with these decisions, just go to Congress and tell Congress to fix it. Nico, make. Maybe you can sort of walk us through why that response is so naive, if not willfully ignorant of what the court is actually up to here. Because I think, as Sherilyn and Steve have shown us, the major moves that the court has taken, with a few exceptions, are all about disempowering Congress, which is supposed to be in the driver's seat of the Reconstruction amendments and in structuring the executive branch and so much else, and saying, no, we're the ones who get to decide. And surprise, they always decide. They want more power for Donald Trump.

[Nicholas Bouie]

Trump, yeah. So I think one thing I would just add on to what Steve and Sherrilyn said, which I totally agree with, is that this judicial supremacy that the court is displaying here, the hubris, the inconsistency, and the sense that, you know, the court has this final say that no one can disagree with, is not new or unique to the Roberts Court. It's longstanding. And it goes back to when the 14th Amendment was written in the first place. So the Authors of the 14th Amendment in 1866 were mainly Republicans. They were part of the first generation of the Republican Party. They founded their party to end the spread of slavery. And in 1857, the Supreme Court said, you can't do that. The Constitution will not allow you to ban the spread of slavery in federal territories. So when Congress was writing the 14th Amendment, as Sherilyn said, they wrote into that amendment, it's up to Congress to enforce this thing. In part because a lot of them were very skeptical of the Court's interpretation of the Constitution, thought, if you will give the court free reign, they're just going to override us. And that generation of Congress passed the first voting Rights Acts, the first civil Rights Acts. And what the court did to those was strike them down as soon as it could and said, among other things, the 15th Amendment and the 14th Amendment, they don't prohibit all discrimination. They just prohibit discrimination that you can prove was done intentionally. That you can show me the election registrar who's denying these people the right to vote and, like, point out where he said, I am a racist. I am doing this because I don't like black people. And absent that, you know, the amendments do nothing. Even when litigants went to the court to say alabama has rewritten its entire constitution. If you look at the front page of, like, the Montgomery Advertiser, they're saying, we're doing this to protect white supremacy. And the courts said, what do you expect us to do about this? It's not up to us. Go to Congress. And when Congress looked at this situation in which the Court had been upholding all of these crazy things, including literacy tests, Congress, with the voting Rights act, said, no, we are interpreting the 15th and the 14th amendment to ban these things. The Court has got it wrong. And as Sherilyn said, the Court for a little while said, I think Congress has this right here. But in 1980, the court said, no, no, no, it's an intent test. It is not what you are saying. Congress overrode that in 1982, and now this term in Calais, the Court is doing the same thing again, saying, no, no, no, it's an intent test. Congress has it wrong. So the idea that Congress can just, you know, come back and fix the problem that the Court is creating, that doesn't make any sense. Because so long as we live in this system and accept that the Court should be supreme, it's just up to the Court to decide what kinds of laws it likes and what kinds of laws it's going to strike down. And this really illustrates why the hubris that Steve and Sherlin are talking about is so important, because to the extent we accept that these justices should have the final say, it might be one thing to accept that if the Court was just applying these, like, really objective rules, Although, you know, the world cup is happening now, the offsides rule is objective. The rule governing red cards is objective. But I think we've seen how, you know, even these sort of objective rules can really be manipulated quite a bit. But, you know, even if the Court's rules were objective, we might think, like, oh, okay, you know, maybe we can accept this idea, but the Court's rules are not objective at all. And one of the things the Court is really leaning into now is a real lack of consistency in how it is applying the rules that it says it is applying. So Steve mentioned Slaughter versus Cook. I mean, I think these decisions may be just hard for ordinary people to understand, but just imagine that you want a federal agency to supervise elections free from partisan interference. Imagine that you want just somebody who's neutrally looking at elections and asking, is this rule fair or not? You might not want, you know, just a president randomly telling the commissioners or whoever is running it. I would like, you to do something completely different. Forget your nonpartisan nature, forget fairness. I want me to win. Do whatever it takes for me to win. And Congress has created all of these agencies with rules in place saying, do your jobs. Do not just listen to whatever the President says, do your job. And you can only be removed for cause. You can only be removed if you are not doing your job. And what the Court said in Slaughter is that protection no longer exists. We're just going to allow the President to ignore it. And so, you know, the President just fired all of the Democratic members of an independent election board because he now can. A lot of the sort of presidential authoritarianism we've seen over the last 18 months or so. Is the President just taking what the Supreme Court has given him license to do and say, I see these laws saying, I can't act in a way I want to, I am going to ignore them. And I know the Court has my back. But where the hubris and inconsistency comes in is the Court then saying, but we like the Federal Reserve, so you can't interfere with that. Why? Because the Federal Reserve has, like, a different historical tradition. And what it comes down to is John Roberts likes the Fed, and John Roberts does not like the Federal Trade Commission. And so that's it. And so we are in this system where there's just no way out. We could all get together and pass a new law tomorrow that we all agree is constitutional, would protect our democracy, would make things better for everybody. And if five people on the Supreme Court say, I don't like it, then all of that work is just for nothing. There's just no way out, absent really challenging the supremacy that the Court is cultivating for itself.

[Dahlia Lithwick]

Nico, I promise we're gonna talk about the way out, but I wanna give. I feel bad for Steve because I feel like every time he goes to a cocktail party, somebody probably leaps out of a closet and yells, shadow docket. But I don't think we can not talk about the shadow docket again this term, because, look, we knew the outcome of slaughter in advance because the supermajority let Trump get away with this months earlier, right, in an emergency order which telegraphed where they were going. And a lot of the shadow docket's decisions this past term and the summer before, it actually expanded Trump's power in ways that maybe didn't make front page news. And often, as is a recurring theme in this conversation, at the expense of Congress. So I'd love for you to talk for a minute, Steve, about what you make of the court, not only reordering the balance of power between the president and Congress, but frequently doing it. And this was the answer to your first question in these unsigned opinions issued long after a lot of us have gone to sleep.

[Steven Vladek]

Yeah, I mean, it's interesting, Dalia, because in one sense, things were a little quieter this term on the emergency docket, but that's only because it would have been impossible for them to be busier than they were at various points during President Trump's first six months in office last year. I guess I'll pick out just two sets of examples because I think they'll both illustrate the point. But the first is, you know, there's a crazy important ruling from late last September. I only know because it came down on my birthday in a case that got very little attention called AIDS Vaccine Advisory Coalition versus Department of State. And that was the case where folks might have seen the headline that the Supreme Court cleared the way for President Trump to refuse to spend $4 billion in mandatory foreign aid spending. But it was, Dalia, the way they did it, right? It was, you know, this cryptic ruling that said, you know, we're not really sure that anyone other than the comptroller general could enforce this statute, the Impoundment Control Act, a theory so ridiculous that, you know, the government hadn't even argued it in the lower courts. And yet that was enough for two paragraphs that basically, Dalia, not only let the court sort of let President Trump sort of refuse to spend $4 billion, but he's been using that ruling in the, you know, nine months since for all kinds of shenanigans when it comes to the appropriations power that would usually be checked by Congress. But, you know, as someone wrote right after the Iran war started, it's a good thing Congress isn't alive to see any of this. So, you know, that's, I think, a really good example. And Justice Kagan's dissent in that case, I think, is one of her better sort of short dissents in this space. The other is, and this is a bit away from Trump, but I think it's actually part of the same point. You can't fully understand the damage the court did to elections and our democracy this term. If you just read Calais, right, you really have to read the five paragraphs the court wrote in the Texas case, the 101 words the court wrote in the Malliotakis case, where for the first time ever, the court granted emergency relief against a state trial court ruling before the state Supreme Court had had a meaningful opportunity to Consider the question what happened after Kallay with Wal? One immediately issuing the judgment over a dissent from Justice Jackson 2 issuing a GVR a grant vacate and remand of a 280 page ruling by a unanimous three judge district court in Alabama, a context in which the Court had just distinguished Calais. And then three when that district court moved heaven and earth to reaffirm its analysis in light of Calais, the court comes back and says nope, not good enough, and wrote like a five page opinion sort of freezing that ruling. And so Dalia, the problem is that but what I've tried to capture really for the better part of eight or nine years now in writing about the Court's behavior on the emergency docket is it really is a proxy for, I think what the Court is doing in general, which is voting the Justices preferences and then backfilling some kind of rationalization which even when we get the full opinions aren't always that persuasive and are shockingly unpersuasive in the emergency. I mean, just to take Malliotakis for one second, because this is maybe one of the cases from this term that most gets at my gears, Justice Alito, who's the only justice in the majority who wrote anything justifying this novel intervention, had to come like this close to lying about the procedural posture of the case to explain in his concurring opinion why the court had the power to do what it did in that case in the first place. That's where we are. I had thought for years that what was happening on the emergency docket was a harbinger of what was coming on the merits docket. I think in a lot of ways that's what this term was. It was like the infection of that slaughter started on the emergency docket. The TPS cases, which we haven't talked about yet, which I think are also really, really important, especially in how they whitewash President Trump's racism, right Started on the emergency docket Many of the bad behaviors and pathologies that folks like I have been criticizing on the emergency docket now seem to be seeping their way into more and more marriage rulings. And it turns out, not for the better.

[Dahlia Lithwick]

We're going to take a short break. Back to school always makes me nostalgic. New shoes, sharpened pencils, Trapper Keepers, lunchboxes, and trying to memorize your friend's home phone number. But parenting during Back to School looks a little different now. Between school pickups, carpools, practices and after school activities, kids need a way to reach us. And honestly we need a way to reach them too. But a regular smartphone can come with a lot more than just calls and texts. Social media, Internet browsers, endless apps and constant distractions can be a lot for kids to carry into the school year. Listen, we were definitely the last parents to allow our son to have a phone in middle school. And we eventually relented, really only for the sake of teen romance. And also carpools. And this is where Gab comes in. Gab makes phones and watches designed for kids with no social media apps and no Internet browsers. They give kids the connection they need while giving parents helpful features like GPS check ins, optional managed contacts, safer messaging, and even the option for Gab music clean songs curated specifically for kids. It's a much more age appropriate way for kids to build independence and a much easier way for parents parents to feel good about that first phone or watch. I can't recommend Gab enough. And right now use our code to get $25 off a kid's phone. That can make parenting easier and give you more peace of mind. Visit gab.comamicus and use code amicus to save $25. That's Gab Gabb.

[Nicholas Bouie]

One second you're enjoying your day off, the next your phone buzzes, a window's

[Dahlia Lithwick]

been broken at home, you're miles away.

[Sherrilyn Ifill]

In one second, everything can change.

[Dahlia Lithwick]

That's why ADT's professionally installed security systems monitor your home 24 7. They're backed by the most company operated monitoring centers in the industry, so you're always supported during an emergency. When every second Counts count on ADT. Visit ADT.com to learn more. And we are back with Sherrilyn Ifill, Steve Vladek and Nico Bowie. As we think through this past Supreme Court term with the very best in

[Mark Joseph Stern]

the biz, one of the predominant themes of the 2025 term, other than disempowering Congress and allowing the pathologies of the shadow docket to infect the merits. Docket is recalibrating what it means to be an American. I think American identity. You mentioned the TPS case. I think hopefully we'll get to that. But you know, it was more than tps. It was the asylum ruling, right? It was the, the green card ruling. All these cases about immigration like this was the Stephen Miller term, where absolutely every effort to make America whiter and more Christian and more inaccessible and more frightening was all thrown at the wall. And with one important exception, we all acknowledge the birthright citizenship ruling. These efforts were blessed by the court. And so I guess I think it' to see this term as anything less than a referendum on what it means to be an American in the maga multiverse. And I would love for our panelists thoughts on that. Sherilyn, I will start with you. I will also just convey a note from our producer that we're in the last quarter, so we have to keep answers a little brief and sorry, this isn't the World cup, so we don't get hydration breaks.

[Sherrilyn Ifill]

So I think that the birthright citizenship case, it really is disastrous. And when I say that, I don't mean just the opinion in Trump v. Barbara. I want to take it all the way back to Trump versus Casa, the first iteration of the case. The idea that a presidential executive order could overcome an explicitly written constitutional provision that has been upheld by a more than 100 year Supreme Court precedent was so preposterous that obviously the Supreme Court should have summarily affirmed the findings or the decisions of multiple district courts that had thrown Trump versus out. But in my view, the court took up Trump versus Casa because they were so hungry to get at the issue that's been bothering them for years, the issue of district courts issuing nationwide injunctions. And so once again, I want to be clear that the court is not, because they frequently say, what can we do? Cases are just coming to us, and then we have to try to figure it out. No, they are quite intentional, quite aggressive, and this was an example of that. They wanted that case because of the posture in which it came to them. So we have now waited more than a year around the question of, as Mark says, who is an American. Right. While the court played around with an issue that matters to them and probably not to, you know, how many Americans are there? 350? Probably 345 million Americans don't care about nationwide injunction. But they did. And so they took this case up. Then they came out with this whole idea of the class action piece, which, by the way, don't think this court is going to continue to broadly look at class actions nationwide class action. So the court then this had to go back. Then it came back up. It comes back up. The court takes all of this time to decide this case that should have been summarily affirmed more than a year ago. And when it decides the case, it decides this case of whether or not the president can overcome this explicit constitutional provision with an executive order. And so they come down 6, 3 on that, but 5, 4 on whether or not it's possible to actually carve out from birthright citizenship. Justice Kavanaugh says, well, you know, I think Congress can do it. Right. He wants to weaponize the enforcement clause of the 14th Amendment to allow Congress not to enforce, but to subtract from the protections guaranteed in the 14th Amendment. I think it's catastrophic. I think this is the kind of case in which. And you've heard all of the talking the last couple weeks, you know, Trump picked up on it immediately, you know, and said, now we're gonna try to do it by legislation. It is to create this environment of legitimacy around the idea that people who are born in this country can be shown not to be citizens. And that is the political game, Right. That they're playing with. Kavanaugh mentioned it at the oral argument, and I said at the time, he's always looking at the political angle. Cause he's a political actor. And the idea of saying, yes, but I think Congress can do it is to keep the issue alive. And it has kept the issue alive for the right. So I don't even really give them the kind of credit that they should have on birthright citizenship. It should have been a unanimous decision. Maybe it should have been 7, 2. But this idea that Congress has the power to do it is profoundly alarming, and it has given aid and comfort to those who have been trying to press this lunatic idea for a very long time. That's what they do. They do that until they can mainstream the idea. But there are real people who are involved in this question. The more that you create this idea that maybe some people born in this country are not citizens, the more you feed an environment, a very dangerous environment in this country, in which individual citizens are deciding for themselves who belongs and who doesn't belong. And so the Haitian TPS decision, the green card decision, the asylum decision, all of those decisions are not just decisions that where we evaluate what the Court said, but is what is the message that the Court is sending to the American public? And the people who will face the consequences of those messages are ordinary people trying to live their lives, trying to be safe, who came here believing that this was a place where they could protect their families. And we never should lose sight of that.

[Mark Joseph Stern]

In some ways, Sherrilyn, a lot of what you're describing is the culture war just creeping into everything that the Supreme Court does. I think, in a lot of ways, Calais and Milligan were culture war decisions. Right? A bunch of other culture war issues on the docket. This term that we are not even gonna have time to fully flesh out. Guns, abortion, religion, LGBTQ rights. And I think it really shows you how urgently important the race and nationalism agendas are that these became like B roll, even though they almost universally went badly. So, Steve and Nico, I know this is a tall order, but I would love if each of you could sort of pick out, like, the worst of these culture war decisions and talk about them. Deal, choice. They didn't get as much spotlight as we think they deserved, and we would be remiss if each of you didn't have an opportunity to rant about how bad at least one of them was.

[Nicholas Bouie]

I think any of these could get their own dissertation about what the court's doing and why it's bad. But I guess one that stands out right now is the court's decision in Wolford, which involved Hawaii law that basically set a default rule that you can't bring your gun into a supermarket or a coffee shop unless you have the permission of the owner of the supermarket or coffee shop. The Court said that that violates the Second Amendment as incorporated through the 14th Amendment. It kind of illustrates just how discretionary all of these tests the Court is making up are. So a few years ago in Bruen, the Supreme Court said, the way we are now going to evaluate gun restrictions for the first time is you have to point to a historical analog. You have to show how the modern gun restriction is analogous to an older gun restriction, a tradition of gun restrictions. And in the Hawaii case, Hawaii had a really great way of approaching that. They said, well, guess what? When Hawaii was a kingdom in 1833, we banned all guns, just no guns in Hawaii. And the court looked at that and said, you know, that that looks like it was an exception. It's kind of out there. It's not part of the American tradition. In the same way as like, let's look at Pennsylvania. And, you know, it's kind of like you can do your best to abide by what the Court has said it is looking for, and yet the court can manufacture an exception to its own rule. So that when you're back before the court with your new thing, the court can say, oh, but you know, you really missed this footnote in some opinion from the 30s that we said, this is not okay, and therefore you lose. And so it does not feel like a fair tribunal to kind of rigorously apply even what the Court is saying. I mean, you know, Sherilyn talked about the voting cases. I mean, the court had had struck down state laws as violations of the Voting Rights act only a few years earlier, had it upheld on the shadow docket this year what's the difference? Three years have passed. The inconsistency makes it just hard to move forward. It's hard to predict as a legislator or as a voter, what are we allowed to do if we want to change something bad that the court has done? How can we do it in a way that complies with the court's vision of the Constitution? For some policy decisions, whether it deals with trans kids or guns or voting or anything else, I just don't think there is any way that Congress or a state can comply with whatever the court has said to the extent that it leads to a policy outcome that the court is upset about.

[Steven Vladek]

So I just want to piggyback on that with my vote for probably the sleeper case of the term, which is a case called Landor v. Louisiana Department of Corrections. So this is ostensibly a religious liberty case. Damon Landor is a Rastafarian Louisiana state prisoner who didn't want to have to shave his dreadlocks as the Louisiana prison policy required him to. He literally had a copy with him in prison. Of the fifth Circuit ruling that said he had a right under a statute called the Religious Land Use and Institutionalized Persons Act. Real yupa. To not shave his dreadlocks. And the prison officials literally took the ruling and shoved it in the trash and then shaved his head. And what did the Supreme Court say about all that? They said, well, because the Religious Land Use and Institutionalized Persons act was enacted under Congress's spending power, as opposed to any of its other enumerated powers, the statute has to elicit consent not just from Louisiana, which consented by taking the money that it gets under rilupa, but from the individual officers who had to consent to the possibility that they would be subject to individual damages, liability for violating the statute. That is based, Mark and Dolly, as you guys know, on such a tendentious reading of the spending clause, one that a wild district court adopted in 2001 and then law professors and circuit judges spent 20 years laughing at. And yet the Supreme Court adopts it in a 6:3 majority in a way that doesn't just screw over people like Damon Landor and lots of other members of religious minority groups in prisons. But, Mark, in a way that's gonna disempower Congress, because this is one of its most important enumerated powers. And the Supreme Court has now made it much, much harder for Congress to pass these kinds of statutes in a way that will subject people who violate them to accountability for violating them. And that's just completely insane. So that's my pick for the culture war sort of disaster that we haven't paid enough attention to yet.

[Dahlia Lithwick]

I think by way of the very last question, we've tried to work our way through the big themes of the term, keeping our eye on the stakes, not just the performance, not just the scorecard, but I think the biggest them that runs through everything we've talked about is where we started with you, Nico, which is a sense that this court has arrogated unto itself unbelievable power over kind of all things. And more and more, we're hearing a public that is saying, stop, but also we're hearing a public that is saying, I don't know what we can do about it. And next week, we're gonna start our special series here on Amicus by the People, where we explore some of the ways Americans can reclaim the power over the Constitution. Power the way that Americans used until pretty recently. But before we get there, and this is gonna be a speed round, I'm gonna ask each of you what, in your mind is the very first thing at the top of your to do list to try to kind of get Americans to come together and reign in the court and turn it back towards democracy? And maybe. Sherilyn, we'll start with you.

[Sherrilyn Ifill]

My view is that I don't know what the outcome of the fall elections will be, but if the outcome of the fall elections is such that there is a majority in Congress that cares about the rule of law and that has the inclination to try and address some of the excesses of the Supreme Court, that they should be prepared to begin immediately on Supreme Court reform, that it should be the end of January when we get the notice of the hearings that are going to happen. And certainly my colleagues on this discussion should be some of the people who testify at those hearings. But we should begin talking. And I don't mean hearings, just talking and talking and talking. I mean with concrete efforts to understand how this court needs to be reformed. What we are experiencing right now, in my view, is not law. And I say that with some hesitation and frankly, with great pain. I was in the court the last day. Decisions came down, and then I think the penultimate one before that, and there were six cases. Cases. And simply by hearing the parties to the case, I could guess who was going to win. And I was right every time. And at the end of that, I thought, okay, well, that's not law. You know, if you can just tell. And, you know, it was like, oh, Rastafarian prisoner versus Department of Corrections. Let me guess, Department of Corrections torture victim. Versus, you know, tech company Cisco. You know, like, I literally it was each one. So I think when we get to that point, it is important to populate into the American public that this is deeply problematic because our public is very cynical right now. And so we need hearings to help people reset and understand that this is unacceptable. And then we need concrete constitutional ideas of change.

[Nicholas Bouie]

Yeah. So we are about to have an election, and there are 435 House seats up for election, and our democracy has corroded to the point where only about 20 of them are competitive. So if you live in, you know, one of 415 seats in this country, you basically already know who your representative is going to be next year because the election is preordained by state legislatures using gerrymandering or by the absence of a Voting Rights act due to this court. And I think the top of my to do list is Congress needs to not just protect democracy, it needs to really restructure our country so that it is a democracy. It needs to pass a new version of a Voting Rights act that eliminates the incentives behind partisan gerrymandering, that uses something like proportional representation for the House, that requires states to adopt proportional representation, but that just eliminates this system where representatives are choosing their voters rather than voters choosing their representative. And the necessity is there because of these past Supreme Court decisions. But the way in which this gets to your question is it really just does not matter what Congress does. The Supreme Court is going to invalidate that law. The Supreme Court is going to say, we do not like your change from the status quo. You may point to a billion precedents from past Congresses or Supreme Courts. You got it wrong. There is nothing that you can do to create a better version of our country, a better version of Congress under our watch. So in addition to protecting the ability of people to vote, to turn every voter into a swing vote, rather than just the people who live in those 10 districts or 20 districts, Congress also must protect its legislation from the Court. It must declare, here is how we, the American people, and our representatives in Congress understand the Constitution. And we do not want Sam Alito to weigh in and offer his vision because it's wrong. We are in charge of what our governance of the people means. And so when we pass a new Voting Rights act, we are determining for ourselves how to, among other things, guarantee a Republican form of government in this country as the Constitution vests in Congress to do so. That's my bottom line recommendation. And what I'm really pushing for is Congress needs to embrace its constitutional authority and protect it from the Court. That has shown it does not care about precedent. It just cares about its own policy judgments, about what kind of country it wants to spend.

[Steven Vladek]

The way this worked historically was that the Court actually had to look over its shoulder. And indeed, sometimes it had to look literally through the ceiling. Cause it was sitting in the basement of the Capitol. And so, you know, in addition to the substantive reforms that Nico is championing, we have to talk about not sort of kneecapping the Court, but making the Court accountable again, getting to a point where the Court can't just interpret a statute to mean completely the opposite of what Congress intended without repercussions. Something's happening next week that hasn't happened in seven years. Justices are appearing before Congress. Justice Kagan and Justice Barrett are both set to testify in support of the Court's budget. That used to be an annual thing, and it was actually sometimes pretty substantive. Congress controlled when the Court sat, where the Court sat, how the Court sat its budget, the Justices pensions. I mean, there are so many different levers Congress used to pull so that the Court could decide what it wanted to decide in individual cases. But it couldn't just spend a whole term, right, thumbing its nose at everybody. And I think that's. To me, we have to reclaim that history and then reframe the conversation about how Congress can and should make the Court look over its shoulder again. Not so that the Court does what we want it to do at all times, but so that the Court doesn't get so completely divorced from its proper institutional and democratic role in our constitutional system. System, yes.

[Mark Joseph Stern]

Thank you to our esteemed panelists, Steve, Nico, Sherilyn, thank you so much for joining us.

[Steven Vladek]

Yep. Thanks, guys. Great to be with you.

[Nicholas Bouie]

Thank you.

[Sherrilyn Ifill]

This was great. Thank you.

[Mark Joseph Stern]

Last of all, Dalia, why do we call it the breakfast table?

[Dahlia Lithwick]

I'm so glad you asked. Slate used to have. In the early days, when we used to chisel it like the Flintstones out of, like, rocks with bird beaks. Slate used to have this amazing feature called the breakfast table, where you would just have two people and they would write back and forth in, like, an epistolary fashion about whatever was going on. And one of the great, great joys of my life was that we used to. I used to first do it with Walter Dellinger, the former acting Solicitor General. And in my head, he's always right here at the breakfast table. And then we built it out into our end of the show with all kinds of amazing guests over the years. And so, in a weird vestigial way, this thing that we do now is what remains of what used to be a beloved cherished feature called the breakfast table. And to be clear, even in 1999 there was no breakfast involved at the breakfast table, nor was there a table involved at the breakfast table. So query why it was called that then and also why we still call it now.

[Mark Joseph Stern]

You know, I had no idea about any of that somehow, Dahlia, that's true. I'd always assumed it was because we always ask guests to say what they had for breakfast to test their audio, and that we had so much audio of guests talking about their breakfast that it could be its own show. But this is a much more satisfying answer. So thank you.

[Dahlia Lithwick]

It's very meta. It is very meta what you're saying. But this long predated even having a podcast. And as you remember, Mark, we used to do the breakfast office table in print, often sweating and crying.

[Mark Joseph Stern]

And some of our participants only knew how to write emails. They wouldn't submit like Word documents or anything like that. It would just be straight into email and we'd be like, okay, we're printing it. Those days are gone. For better or worse.

[Dahlia Lithwick]

Okay, I think we're gonna do now we're gonna do some plus kits with muskets. Amicus plus Members Mark and I are hosting an after party party in the Smokeless Cigar Bar and you're invited. We are answering some of the dozens and dozens of very smart questions that you plusketeers sent in to amicuslate.com if you are not a plus member, visit slate.com amicusplus to join the joyful ranks of plesketeers by joining you support our work and you get loads of extras and ad free listening and paywall free [e-mail] 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.

[Mark Joseph Stern]

Thanks so much for listening and tune in next week for the first in our new series by the how to Reclaim the Constitution and the Law from this Monarchic Supreme Court.

[Dahlia Lithwick]

Sara Burningham is Amicus's Supervising Producer. Our producer is Sophie. We are so grateful for the additional help this week from Senior Supervising Producer Joel Meyer. Hillary 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. Take good care y'. All.

[Steven Vladek]

He's Dribbling the ball with everything on the line. He's driving down the pitch.

[Sherrilyn Ifill]

He's facing price hikes and cuts past him. Carrier contracts, tries to block him.

[Nicholas Bouie]

Oh, he leaves him in the dust.

[Sherrilyn Ifill]

He's at the edge of the box.

[Steven Vladek]

He cuts past the non stop group chat trash talk. He clears on goal.

[Dahlia Lithwick]

He shoots.

[Sherrilyn Ifill]

Go unlimited data for $25 a month

[Mark Joseph Stern]

forever Visit your local Boost Mobile store today to get unlimited data with a

[Steven Vladek]

price that never changes. Boost mobile after 30gb, customers may experience lower speeds. Customers will pay 25amonth as long as

[Mark Joseph Stern]

they remain active on the Boost 25 Unlimited plan. This episode is sponsored by Michaels. Your destination for all things Birthday parties. We just had Lucky's first birthday and it was so great to be able to go into Michael's and get everything. Of course I knew they had craft supplies there, but I didn't realize how expansive their party supplies were. And Michael's really is where you can go to get everything for a party, whether you're planning a kid's birthday or even an adult celebration. They've got over 4,500 party supplies, more than 60 different themes and prices starting at just 99 cents. Plus they've recently lowered prices on hundreds of items. We found adorable decorations, balloons, everything we needed to pull the party together without making a bunch of different shopping trips. Plus, I always have a good time going to Michael's. I love shopping there. I could just browse the aisles forever. But if you're short on time like I always seem to be, you can also get same day delivery or buy online and pick up at the store. They even offer free helium inflation on select balloon styles, which is such a lifesaver. And it was for our party, truly. So if you got a birthday coming up or just a celebration, remember Michaels everything. To celebrate anything, visit Michaels in store or shop online now.