Podcast Summary: Amicus With Dahlia Lithwick | Law, justice, and the courts

Episode: The Trump Court and the Roberts Court
Date: October 9, 2021
Host: Dahlia Lithwick
Guest: Professor Lee Epstein (Washington University in St. Louis)

Main Theme / Purpose

This episode explores the evolving legitimacy, partisanship, and public perception of the U.S. Supreme Court as it begins a new term with major cases on abortion and gun rights. Dahlia Lithwick invites Professor Lee Epstein, an expert in empirical judicial behavior, to shed light on how data and political science challenge traditional narratives about the Court's role, with an eye toward recent “shadow docket” decisions, internal court politics, and the justices’ attempts to manage or reclaim legitimacy.

Key Discussion Points and Insights

1. Return to In-Person Arguments & The Shadow of Politics

• The Supreme Court opened its term in-person for the first time since winter 2020 (00:05).
• Justices’ approval ratings are low, and big cases on abortion and guns are looming (01:09).
• Justice Alito and Justice Sotomayor recently made speeches reflecting very different public concerns (02:11).
• The "shadow docket"—the Court’s emergency orders and summary decisions—is at the center of legitimacy debates.
  • Justice Alito: "The catchy and sinister term shadow docket has been used to portray the Court as having been captured by a dangerous cabal..." (01:32)

2. Is the "Trump Court" Different from the "Roberts Court"?

• The "Trump Court" is defined by the decisive three appointments under Trump, which shifted the Court’s center rightward (06:17).
  • Prof. Epstein: “Obama's president for eight years, he gets two appointments. Trump is president for four years, he gets three appointments and he moves the center of the court toward Brett Kavanaugh, away from the chief justice. So, yeah, I told you so.” (06:24)
• However, last term's data don’t reflect a wildly extreme or socially conservative court. Statistically, the Roberts Court still exhibits high unanimity (nearly 50% in nine-justice decisions vs a 33% historical baseline) and fewer 6-3 partisan splits than expected (approx. 15% of argued cases) (08:34).

3. Reconciling Data and Public Perception

• Lithwick challenges the idea that all cases are equal, pointing out that not all decisions have the same impact (10:01).
  • “It weights the swearing cheerleader as though that’s the same as invalidating Section 2 of the Voting Rights Act. That’s gotta be wrong.” (10:08)
  • Epstein agrees this is an empirical challenge but counters that even among high-profile, "front-page" cases, the liberal wing won some big ones (11:50).
  • Key wins for liberals: Obamacare, “cheerleader” free speech, NCAA student athlete case.

4. Emergency Orders & “Shadow Docket”

• Prof. Epstein identifies a two-court dynamic: a standard-issue, moderately conservative Roberts Court and a more aggressive “Trump Court,” especially visible in abortion, guns, and COVID-religion cases (08:03).
• Recent abortion orders (e.g., Texas’s SB8 law) and sudden emergency orders have accelerated perceptions of partisanship (“self-own”). (14:16)

5. Cycles of Legitimacy and “Break the Glass” Moments

• Lithwick describes a recurring cycle:
  1. The Court asserts it's above politics
  2. The press and public buy in
  3. The Court acts politically (e.g., Bush v. Gore)
  4. The public and press are shocked; political scientists say “I told you so” (14:16)
• When is it a true crisis? Epstein: Study trends in partisan splits, unanimity, and outcomes—and watch especially for voting rights and elections cases (16:37, 31:39).
  • “The commentary on the court with regard to elections and voting rights is probably the scariest… that may be time to panic.” (31:39)

6. The Justices’ Public Offensive and Reaction to Criticism

• Justices are increasingly vocal—especially when their legitimacy is questioned (24:38).
  • Justice Alito’s Notre Dame speech (targeting Adam Serwer’s Atlantic article) is highlighted.
  • Prof. Epstein: “It’s hilarious… they have lived through these confirmation proceedings… everybody knows that, you know, once they’re on the court… Elena Kagan is a very different person than Amy Coney Barrett. Right? We all know that.” (24:38)
• Contrasting styles: Some justices (Roberts, Kagan) say little; others (Barrett, Alito, Thomas) are vocal about nonpartisanship.
• The wisdom of attacking the press is questioned: “Why turn on the press? It seems like such an odd strategy.” (30:06)

7. Measuring Judicial Behavior (Limits of Data vs. Doctrine)

• Epstein underscores that while data can map outcomes, it's much harder to empirically capture shifts in doctrine—i.e., footnotes or test changes in otherwise “consensus” cases (11:50, 34:43).
• She advocates a combined approach: “The idea of building in nuance in the decisions, as you do all the time, Dalia, I think that bridges the gap very nicely, combining the data with what you’re reading in the opinions. I applaud that.” (36:33)

8. Faith, Identity, and Confirmation Hearings

• Epstein and Lithwick unpack challenges in evaluating how justices’ faith and identity predict their decisions—especially as these topics are taboo in confirmation hearings but evident in decisions about religion (37:36).
  • “Religious identity, the degree of devoutness, religiosity, matters—it affects the justices in particular kinds of cases.” (38:17)

9. Roe v Wade, Abortion, and the Motive Force of Controversy

• Both agree that abortion is the engine driving much of the crisis of legitimacy, both substantively (in SB8, Dobbs) and symbolically—for insiders, observers, and the public (40:32).
  • Dahlia: “If you factored out abortion… everything would look different and also everything would sound different.” (40:34)

10. Pullback, Docket Control, and Path Forward

• Epstein suggests the Justices’ best move may be to “pull back”: stop giving speeches, choose fewer high-profile, divisive cases, return to quieter institutional norms (41:45, 43:12).
  • “They can do a number of things. Docket control is very important. They’ve taken a couple of high profile cases this term. How many more do you really want to take?” (43:13)
  • Focus communication on how the court works, not on attacking press or defending nonpartisanship.

Notable Quotes & Memorable Moments

• On the legitimacy self-inflicted wound:

  “The Justice's own decisions to do kind of partisan things in partisan ways on an emergency docket, shadow docket, I’ll say it was an epic self-own.” – Dahlia Lithwick (02:11)

• On the ‘two courts’ dynamic:

  "There’s this kind of, I’ll call it Trump court... but then you start to look at the data... you see above average unanimity. You don’t see the 6-3 decisions that we thought.” – Professor Lee Epstein (08:34)

• On cycles of shock and political science:

  “All the political scientists are just standing around smoking and drinking and murmuring I told you so. And they're holding the receipts.” – Dalia Lithwick (05:40)

• On the partisan split crisis:

  “If this persists, this polarization... public legitimacy is going to suffer. That's happening now, right?” – Dalia Lithwick (30:42)

• When to panic:

  “Well, that's time to panic right there....The commentary on the court with regard to elections and voting rights is probably the scariest of the commentary.” – Professor Lee Epstein (31:39)

• On the Justices’ public relations strategy:

  “Why turn on the press? It seems like such an odd strategy.” – Professor Lee Epstein (30:06)

• On the press and doctrinal nuance:

  “The idea of building in nuance in the decisions, as you do all the time, Dalia, I think that bridges the gap very nicely, combining the data with what you're reading in the opinions. I applaud that.” – Professor Lee Epstein (36:33)

• Advice for the Justices:

  “They can do it. This kind of emergency app thing is just way overblown...I think they do have to lay a little bit low. Exactly what you're saying.” – Professor Lee Epstein (43:12)

Timestamps for Important Segments

• Opening of the Term & “Shadow Docket” Critique: (00:05 – 02:11)
• Intro of Professor Lee Epstein & Data vs. Perception: (05:40 – 08:34)
• Unanimity vs. High-Profile Partisan Cases: (08:34 – 11:50)
• Dissecting Public Reaction and Emergency Orders: (14:16 – 18:14)
• Cycles of Court Legitimacy: (14:16 – 16:37)
• What Would a Crisis Look Like?: (16:37 – 19:29)
• Justices’ Public Communications and Legitimacy: (24:38 – 30:42)
• Empirical Limits: Doctrine and Identity: (34:43 – 39:49)
• Abortion as the Flashpoint: (40:32–41:45)
• Pullback Strategy and Predicting the Court’s Future: (41:45–45:07)

Tone and Takeaway

The episode balances wry skepticism and empirical rigor, reflecting both Lithwick’s polemical, press-oriented angle and Epstein’s data-driven objectivity. The core takeaway is that the Court’s reputation crisis is real but perhaps less apocalyptic (based on last term’s data) than news cycles suggest; much hinges on high-profile cases (especially abortion and voting rights). The Court’s future legitimacy may depend on restraining partisan visibility, increased transparency (“show your work”), and possible retreat from incendiary public posturing.