Amicus With Dahlia Lithwick | Law, Justice, and the Courts Episode: The Two Tracks of Justice Release Date: May 24, 2025

Introduction

In this compelling episode of Amicus, hosted by Dahlia Lithwick, Dahlia delves deep into the evolving landscape of American jurisprudence, particularly in light of recent Supreme Court decisions that challenge longstanding legal precedents. Joined by Aziz Huq, a distinguished scholar from the University of Chicago Law School, and co-host Mark Joseph Stern, the episode explores the concept of the "Dual State" and its ramifications on the balance of power between the executive and judicial branches.

Supreme Court's Decision on Humphrey's Executor

The episode opens with an urgent discussion about the Supreme Court's recent decision regarding Humphrey's Executor v. United States, a pivotal 90-year-old precedent that safeguarded the removal protections for members of independent federal agencies.

• Dahlia Lithwick [02:00]: "The Supreme Court handed down a profoundly important decision calling into question the fundamental underpinnings of a 90-year-old precedent called Humphrey's Executor v. United States."

• Aziz Huq [03:02]: "There's no one I'd rather talk about this with than you, Dahlia. But ideally, I would like to not talk about it at all because what the Supreme Court did here barely qualifies as law."

The decision effectively allows the President greater authority to remove agency officials without the previously required "good cause," signaling a potential shift towards a more centralized executive power. This move has significant implications for the balance intended by Congress in creating and overseeing independent agencies.

Introducing the Dual State Theory

Aziz Huq introduces the concept of the Dual State, a framework that elucidates the bifurcation of legal systems within the United States, drawing parallels to historical precedents in Nazi Germany.

• Aziz Huq [28:27]: "The term dual state was coined by Ernst Frankl in 1941. It describes a split where there's the normative state, governed by established laws and courts, and the prerogative state, where the government exercises lawless and absolute authority."

The Dual State theory posits that modern America is experiencing a split akin to that of 1930s Germany, where two parallel legal systems operate: one orderly and law-abiding, and the other arbitrary and unchecked by the rule of law.

Impact on Federal Agencies and the Federal Reserve

The hosts discuss the broader implications of the Supreme Court's decision on various federal agencies, including the Federal Reserve.

• Dahlia Lithwick [07:15]: "If Humphrey's Executor is gone, it has to be the case that the President could fire the Fed Chair too."

• Aziz Huq [06:36]: "The decision may or may not have overturned Humphrey's Executor, but it's clear Trump has seized significant control over agencies designed to be balanced and bipartisan."

This shift threatens the independence of critical institutions like the Federal Reserve, which plays a crucial role in shaping monetary policy. The Court's ambiguous language leaves room for executive overreach, undermining statutory protections previously in place.

Justice Elena Kagan's Dissent

A significant portion of the episode is dedicated to Justice Elena Kagan's robust dissent against the majority opinion, highlighting the gravity of the Court's actions.

• Aziz Huq [09:18]: "Justice Kagan joins Justices Sotomayor and Jackson in her dissent, expressing that the Court's order bears little resemblance to law as we know it."

• Dahlia Lithwick [12:22]: "Justice Kagan is upset that the majority is willing to grant sweeping authority to a president who aims to break the law."

Kagan's dissent is a powerful critique of the Court's willingness to set aside established legal norms, emphasizing the dangers of allowing a single administration to override judicial protections.

Broader Implications for the Legal System and Democracy

The conversation shifts to the potential long-term effects of these judicial shifts on American democracy and the rule of law.

• Aziz Huq [19:55]: "Where the agenda of the President and the agenda of the Supreme Court conflict, the Supreme Court wants to assert its own independent power. But where they coincide, the Court often sides with Trump, furthering their vision of presidential power."

• Dahlia Lithwick [22:33]: "It feels as though the Imperial President is winning more battles against the Supreme Court, fostering a perception of the president as a monarch."

The Dual State not only affects agency independence but also threatens the very fabric of constitutional democracy by enabling executive overreach and diminishing judicial authority.

Ethical Dilemmas for Lawyers and the Prerogative State

Mark Joseph Stern elaborates on the ethical challenges lawyers face in a dual legal system, drawing parallels to historical contexts.

• Mark Joseph Stern [32:18]: "Frankl captures how the Nazi government was constructing zones of lawless power alongside ordinary legal systems, creating ethical dilemmas for lawyers who needed to navigate both realms."

The existence of a Prerogative State forces legal professionals to confront unprecedented ethical choices, often having to comply with unlawful executive actions to protect their clients, thereby eroding the integrity of the legal system.

Comparing Dual State to Competitive Authoritarianism

A thought-provoking comparison is made between the Dual State and the political concept of Competitive Authoritarianism, highlighting the subtle erosion of democratic norms.

• Dahlia Lithwick [52:58]: "The Dual State is to law what Competitive Authoritarianism is to politics—a veneer of normalcy masking underlying authoritarian control."

• Mark Joseph Stern [57:20]: "The Dual State enables the emergence of Competitive Authoritarianism by allowing legal tools to suppress political opposition without dismantling electoral processes."

This parallel underscores the insidious nature of the duality, where legal and political systems simultaneously uphold democratic facades while enabling authoritarian practices behind the scenes.

Judicial Response and Future Outlook

The episode concludes with reflections on how judges are responding to these challenges and the potential trajectory of the U.S. legal system.

• Mark Joseph Stern [65:40]: "Judges in the American system are still largely adhering to the normative state, resisting the encroachment of prerogative power, though the Supreme Court's actions test these boundaries."

• Aziz Huq [67:56]: "The Supreme Court's use of the shadow docket to issue emergency orders without robust legal reasoning further destabilizes the normative legal framework."

The hosts express concern that continued judicial complacency and executive overreach could lead to a permanent erosion of the rule of law, making it imperative for legal scholars, practitioners, and citizens to remain vigilant.

Conclusion

In "The Two Tracks of Justice," Amicus offers a sobering analysis of the current state of American jurisprudence. Through insightful discussions and expert commentary, Dahlia Lithwick, Aziz Huq, and Mark Joseph Stern illuminate the profound challenges facing the legal system, emphasizing the urgency of addressing the growing divide between the normative and prerogative states. This episode serves as a crucial call to action for safeguarding the integrity of the rule of law and maintaining the delicate balance of power that underpins American democracy.

Notable Quotes:

• Dahlia Lithwick [05:14]: "The majority seems to have held that the two officials must remain fired while this case winds its way through the lower courts."

• Aziz Huq [08:42]: "The Supreme Court did not mention Humphrey's Executor. They ignored it, pretending it didn't exist."

• Dahlia Lithwick [12:22]: "Justice Kagan is just saying, why are you giving him a win just because he asked for a win?"

• Aziz Huq [19:55]: "The more wins the court gives Trump on areas where the branches agree, the more Trump feels empowered to disregard the law where they disagree."

• Mark Joseph Stern [33:35]: "Capitulating to unlawful orders was profoundly counterproductive for the firms themselves."

• Dahlia Lithwick [40:31]: "I feel like if you can draw a picture of what the prerogative state actually means, it will help us make this really concrete."

• Aziz Huq [54:02]: "Competitive authoritarianism describes a situation where elections continue, but the main mechanism for popular control is undermined."

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This summary captures the essence and key discussions of the episode, providing a comprehensive overview for those who have yet to listen.