← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
This End Of Term At SCOTUS Is Unlike Any Other in History
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- [00:01]
Dahlia Lithwick
Put us in a box.
- [00:04]
Mark Joseph Stern
Go ahead.
- [00:05]
Ryan Reynolds
That just gives us something to break.
- [00:07]
Mark Joseph Stern
Out of because the next generation 2025.
- [00:11]
Dahlia Lithwick
GMC terrain elevation is raising the standard.
- [00:14]
Mark Joseph Stern
Of what comes standard.
- [00:17]
Dahlia Lithwick
As far as expectations go, why meet them when you can shatter them?
- [00:22]
Mark Joseph Stern
What we choose to challenge, we challenge completely.
- [00:26]
Ryan Reynolds
We are professional grade.
- [00:28]
Mark Joseph Stern
Visit gmc.com to learn more. Ryan Reynolds here from Mint Mobile with a message for everyone Paying Big Wireless way too much. Please, for the love of everything good in this world, stop with Mint. You can get premium wireless for just $15 a month. Of course, if you enjoy overpaying. No judgments. But that's weird. Okay, one judgment anyway. Give it a try@mintmobile.com Switch upfront payment.
- [00:52]
Ryan Reynolds
Of $45 for 3 month plan equivalent to $15 per month required intro rate first 3 months only, then full price plan options available, taxes and fees extra. See full terms@mintmobile.com I'm Dahlia Lithwick.
- [01:04]
Mark Joseph Stern
And I'm Mark Joseph Stern, and this.
- [01:07]
Ryan Reynolds
Is Amicus Slate's podcast about the courts and the law and the Supreme Court. It's here. It's almost June, and we're at the final weeks of the Supreme Court term when the Justices issue their big important opinions at neck snapping velocities. Or as we've come to call it here at Slate Opinion Palooza.
- [01:32]
Mark Joseph Stern
I wouldn't want to celebrate it with anyone but you, Dahlia.
- [01:36]
Ryan Reynolds
I feel that celebrate is not the right word, Mark, but I'll allow it. So look, to kick off the next five or so weeks of furious activity at the High Court, we wanted to try to give you a sense of not just what to expect, but also the ways in which this term is totally unlike any that we have ever covered. We are looking at this Shakespearean constitutional theater in which a monarchic Supreme Court is sharing the stage with the President who would be king. And as we have said in the past, this same court more or less crowned him as such. It's also the nominal close of a term where what is happening on the merits docket is massively important, and it still pales in comparison to whatever it is that keeps popping up on the emergency docket.
- [02:26]
Mark Joseph Stern
Right? We have never before seen an end of term where it's likely the drama will in no way be over the last week of June alone. For court watchers, it's been months of covering two terms at once, and one of them comes with little to no briefing, no arguments, and inscrutable per curiam opinions that we have to read like entrails later on in the show Dahlia is going to hand the reins to me for a live edition of Amicus that we're taping as part of the WBUR festival in Boston. I'll be joined by our friend Jed Sugarman, who will be explaining how and why we have arrived at this point where the Royal Court of Roberts is facing the Court of Kings, Donald, and what might happen next.
- [03:10]
Dahlia Lithwick
These are cases that happen out of one kind of emergency or the other, as opposed to Covid, which was an external emergency. The emergency is Donald Trump.
- [03:18]
Ryan Reynolds
But first, we want to get to the last few weeks of the October 2024 term. And Mark, let's do it. What are we waiting for on the opinion days? Go, go, go.
- [03:30]
Mark Joseph Stern
Okay, I'll do it real fast. Time me. 60 seconds. Okay. We're still waiting for a decision in United States vs Skremetti on whether states can ban gender affirming care for minors. We're still awaiting a decision in Mahmoud v. Taylor on whether religious parents can essentially veto LGBTQ books in public schools. We're still awaiting a decision in racial gerrymandering, Louisiana vs Calais and Robinson vs Calais whether basically Louisiana has to redraw its congressional districts to take away one majority black district. We're still awaiting a Decision in Medina vs Planned Parenthood Atlantic on whether states can defund Planned Parenthood by withdrawing their Medicaid eligibility just because some of their clinics in some of the country happen to provide abortions. We're still awaiting a decision in FCC v. Consumers Research on whether the non delegation doctrine will be made great again. And the Supreme Court will gut the Federal Fund for Rural Internet. And how about Becerra vs. Braidwood management on whether the Supreme Court will gut the federal body that recommends insurance coverage for certain preventative care under the Affordable Care Act. And Smith and Wesson vs. Mexico, asking whether Mexico can sue American gun companies for the proliferation of US Guns crossing the border into Mexico. Free Speech Coalition v. Paxton about whether states can require age verification for porn sites. Ames v. Ohio Department of Youth Services on whether reverse discrimination is a thing under Title VII and can we still store nuclear waste in this country? The fifth Circuit basically said no. The Supreme Court will decide in NRCV Texas. And last but certainly not least, Dalia, we have the cases known as Trump v. Casa on birthright citizenship, whether the Supreme Court will roll back the nationwide injunctions against the executive order that sharply limited birthright citizenship in clear violation of the 14th amendment. How did I do? How's my time?
- [05:31]
Ryan Reynolds
You did extremely well. You should hydrate and Let me reflect two quick things. One is it's probably easy for listeners to hear what you just said and be like, oh, well, there's no Dobbs, there's no immunity decision. Maybe I can go back on snooze, but those listeners would be wrong. And that's not just because a whole bunch of those cases are massively consequential, but it's because we haven't even mentioned the other world of cases looming over all of us that are pending on the shadow docket. And if our friend Steve Vladic is counting, right, in addition to the 30 plus merits cases that you just reeled off, the Trump administration has just filed for emergency relief from the court for the 17th time since January 20th. So the shadow docket is not even a shadow docket. It is a flashing red siren docket.
- [06:29]
Mark Joseph Stern
I mean, we have to talk about the shadow docket in the same breath as the merits docket, because the Supreme Court is now handing down this seemingly endless stream of emergency orders and decisions without full briefing and argument. And frequently these shadow docket decisions are radically unsettling the law as we know it. And so, alongside all the big rulings we should expect the court to continue issuing over the next few weeks, we should also expect the court to just drop these bombs in our lap over the shadow docket without warning, quite frequently on Friday afternoons when everybody thinks the court is quiet for the weekend.
- [07:03]
Ryan Reynolds
We have already seen hugely consequential shadow docket rulings just in the last few weeks. Some of them we don't know what the vote count is. Some of them we don't know who is on what side. Often, as you've said and we've talked about on the show, we don't actually know what the law is. We just know that the court, you know, zigged or zagged. Um, there is no way to construct a meaningful system of law based on these kind of post it note, unsigned cursory opinions, and the weirdness of covering both the merits docket, which remind me, it's a full time job. And then the shadow docket, which is sort of another full time job, except there's no arguments and no meaningful briefing and no opinions to parse. This is crazy. And I guess I want to just mention that on last week's show, Professor Aziz Huq made this really, really interesting and I just want to commend it to people. Comparison to, you know, 1930s Germany, when you had what he called a dual state system, right? One system of law operating sort of visibly, clearly coherently everybody agrees this is the law. And then this second system that kind of operates in the shadows. Right. Which we can talk about in a second. But the thing that launches you into that second shadow world of law, but not law, that is essentially just power, is emergencies. And it is no accident that every single one of these things is now an emergency.
- [08:43]
Mark Joseph Stern
Yeah. Every ruling in the lower courts against Trump is emergency. That requires immediate redress by the Supreme Court, at least in the view of the Justice Department and in the view of four justices, sometimes five, occasionally six. I mean, what's really troubling here is not just that the court is constantly falling over itself to intervene in these Trump related disputes, and not always on Trump's side, but frequently on Trump's side. Right. Far too frequently for comfort. But the issue is that when the court is issuing the decision over the shadow docket, it doesn't have to just reach the merits and say, this is what's right and this is what's wrong. It gets to consider all of these squishy factors like the balance of the equities and irreparable harm. And it is just super duper easy for for the court to manipulate those squishy factors to justify a decision for Trump that does not follow what the law actually is. That has the impact of unsettling the law. But that, in the view of the court, seems just and fair, with due deference to the presidency. And I think last week's decision allowing two leaders of independent agencies to stay fired for months, maybe years, while the case winds its way through the court is a perfect example of that. Right. The court didn't expressly say Trump now has a to fire the heads of independent agencies. It said, oh, well, when we balance the equities and we consider the irreparable harms, Trump would be harmed more by having to deal with these leaders staying in their place than the leaders will be harmed by being fired from their jobs. And as Justice Kagan pointed out in her very spicy dissent, that is a total botched misreading of how you actually balance harms and equities. The harm here isn't that these two individuals are going to lose their job and they're going to have to find another way to get a paycheck. Nobody in this case cares about that. They don't care about about that. The harm is that Trump has now gotten away with violating a federal statute duly enacted by Congress. Two different federal statutes, in fact, that have been on the books for years that reflect, like the judgment of our lawmakers elected by the people, that some agencies should have a buffer that protects them from direct partisan interference. And now that buffer is totally gone. And the Supreme Court didn't even talk about it. They just ignored it. They just willed it away because it's shadow docket, it's ultra fake law. They can do whatever they want and just pass it off as balancing this and that and that. It seems to me, among the many other ills and sins, that is what the court promises us that it doesn't do, right all the time. When it invokes originalism, when it invokes textualism, when it invokes these rules that allegedly move it away from living constitutionalism and balancing tests and just gives us a rigid answer of yes or no. The court promises we don't do that anymore. We don't balance interests anymore. You know, we don't try to see if the interests have evolved or the text has evolved or the principles have evolved and society has changed. All we do is say what's the original meaning of this? And apply it to the case at hand. And in the shadow docket, the court jettisons all of that and does something completely different. And whatever it is, it just doesn't look a lot like law.
- [11:48]
Ryan Reynolds
Right. And we talked about this last week. But in that same opinion, the court more or less, I think, threw a 90 year old precedent, Humphrey's executor, into the dustbin of history and never explained why, and then rescued the Fed from the dust been of history and poorly explained why, although it doesn't hold. And so I want to just make one quick point about what you're saying in terms of emergencies. One is it's all feelings ball, right? Is who thinks there's an emergency? Is it a bigger emergency that I want to strip citizenship from children or is it a bigger emergency that states are going to have to manage whether children are born and have to prove their citizenship? And it's just feelings all the way down. And I think one of the other things, and we're going to talk about this in the plus, is the tariffs decision that came down on Wednesday from the U.S. court of International Trade. And here we have again the President invoking emergency powers that he's got. It's an emergency and he therefore has to justify all of his tariffs. But like whose emergency and in what world do we live in where the court is just putting out fires, putting out fires, putting out fires based entirely on their, as you say, feelings, hunches and superstitions about which side's claims to being an emergency are more legitimate. And as I said, and I just want to say it again, this really does feel like it chimes with what Professor Huck was saying, which is the minute you move out of Lawland into emergency land, be very, very afraid.
- [13:27]
Mark Joseph Stern
Just to pull one strand out of this that I think is implicit is who's on the front lines of these emergencies. It's the lower courts, right? Including the Court of International Trade, including many federal district courts and federal courts of appeals. They are the ones who have to deal with these cases in the first instance. And they are under immense pressure and under fire from the administration. You have the president calling for some of these judges to be impeached. You have these judges having to stick their necks out, signing opinions that may seriously infuriate the president and his allies. And the Supreme Court does not consistently have their backs because the Supreme Court can't decide whether the emergency is that Trump has exceeded his power or whether the emergency is that Trump needs this power and it's been taken away from him. And so I just think, like, you know, yes, being a life tenure judge is a pretty good job. We don't need to have too much empathy for them. But I still do have some real empathy for judges who have to deal with these incredibly complicated matters on a very stressful, compressed timeline. Because if these lower courts don't rule quickly, then the Trump administration just leapfrogs them, goes to the Supreme Court and said, they've taken too long. You need to step in now. So they have days, maybe weeks, to issue incredibly important, sweeping judgments on often unprecedented legal disputes. And I would think that the least the Supreme Court could do is pretty consistently have their back. But as we've seen, the court gives and the court takes. And all too frequently, the Supreme Court is throwing these lower courts and lower court judges under the bus because they think that Trump should still be king at least half the time. And the lower courts are still standing up and saying no.
- [14:58]
Ryan Reynolds
So that really does lead to the other big overarching opinion palooza theme that you and I have been sitting with all year, which is in some sense, Mark, the Roberts court is in a very different, different position than the district courts and the courts of appeals because it was the Roberts Court, not all of the Roberts Court, but that majority in the immunity decision that created the moment we are in, not simply because they ruled the way they did in the immunity case, but because that case, as drafted, gives Donald Trump all the kingly powers he ever wanted in the world. With the exception of some caveats that nobody fully couldn't understand. So I guess what I want to ask you about is this really good piece you wrote this week to kick off Opinion Palooza for us at Slate, which essentially is this is the Roberts Court more or less punching itself in the face by being the Imperial Court that created a king. And now they're going to run around in circles and try to check that kingly power and check Donald Trump's kingly sense of his own power. And as you said, that puts them in a really different position than the lower courts that can just do the job. Job of deciding what the law is.
- [16:11]
Mark Joseph Stern
Yeah. I mean, when that decision came down, we all talked about the criminal immunity aspect of it, which was terrible. And certainly that plays a role in Trump's extensive seizure and abuse of power, that he knows he can do it without facing prosecution. But there's a whole other side of that opinion that is now coming back to haunt the nation, which is that in order to let Trump off the hook, the majority embraced this very dark vision of the presidency as corrupt and self dealing and all powerful and gave that vision a kind of constitutional blessing. It said, of course the president can take control of the Justice Department and order sham investigations and threaten to fire officials who stand in his way. Of course the President has absolute control over the executive branch and prosecution authority. Of course the president can do basically whatever he wants. I mean, I think part of that was a result of John Roberts being aghast by the prosecution of Trump. He clearly felt it was unfair. Part of it was John Roberts seeing that this dispute gave him an opportunity to smuggle in some of his deeply held beliefs about sweeping in monarchical executive power. But I don't know if he realized exactly what he was doing. I'm not inclined to give him the benefit of the doubt. But the effect was to usher in a second Trump presidency, not only pave the way for Trump to win again, but to then hand him so much unprecedented authority over the entire executive branch, maybe the entire federal government, and really encourage him to use it to maximum personal effect in terms of abusing his office and his power in ways that we just haven't seen presidents do in the past, even including Richard Nixon. I truly think what Trump is doing now goes beyond Nixon. And so I wonder, does the Supreme Court realize that it risked rendering itself just another feckless layer of bureaucracy that Trump can push through and, and punch past in order to achieve his goals in handing over so much power to Trump? That is the dynamic we're see seeing now where in some cases the court says, yeah, we did this on purpose, we want him to have all this power. But in other cases, at least five or six justices seem to be saying, hold on, pump the brakes. We didn't mean to render ourselves irrelevant. And yet Trump clearly sees the judiciary as increasingly irrelevant. And I think a lot of the blame for that falls on the shoulders of the Chief justice and his co conspirators in that immunity decision.
- [18:32]
Ryan Reynolds
I think that's exactly right. And I think that those are the two layers of how we have to look at why the Supreme Court is so in some sense full of a sort of different level of anguish and remorse and complexity than the lower courts that can just bump along because they didn't crown him king, the high court did. I want to just note for folks that a lot of this is going to be material. You're going to cover with Jed Sugarman in the live show that's coming up in a moment. But I also really want to a flag that for a Supreme Court that has to think constantly about these issues of its own legitimacy, the issue of how people hold the court in high regard when the court screws up, this really is where the rubber hits the road. Right. It's not just the decision that was made in the immunity case. It's the language that essentially said to a president who wants to be PAC man, go ahead and eat all the PAC man nuggets, cuz you get all the power you wanted. I mean, in some sense, for a president who only understands power, the court now has to live with the fact that it gave the president everything he wanted and more. And now it's gotta figure out how to claw some of that back. That is the game we're playing now.
- [19:55]
Mark Joseph Stern
And I wanted to ask you about an aspect of that that you've been focusing on a great deal in the past two years, which is that as the court manages its caseload, it's also managing its public image. Right. And we just see tanking public confidence in the court, I think, understandably so. And the court likes to tell the story about itself, that it's sort of iracular and humble and nonpartisan. That has been a very challenging story to tell over the last few years, especially post Dobbs. But now I kind of feel like they maybe are trying to tell it less. I mean, the justices are taking these swipes at each other. It's pretty sharp rhetoric. Some of the justices are calling these lower court judges hacks. Right? Just outright condemning the Lower courts that are standing in the way of Trump. I'm just curious what you think the effect of, of all of this will be on the Supreme Court's own legitimacy as it battles for like a place at the table as Donald Trump, the Pac man, gobbles up everything that the court thought it had authority over.
- [20:51]
Ryan Reynolds
It is the thing that we're gonna know, I think, at the end of this term, assuming as we keep joking, that this term ever ends. And I question whether they're all flying off to their like Aspen and European chalets the first week of July, because I think this emergency docket is just gonna keep raining down upon us. But I do think that the court question is the one that we're struggling with. And listen, it's early days. I think in the first few weeks we could say that the Supreme Court was trying to preserve that sense of itself as humble and oracular and careful and even handed by just doing really technical, often jurisdictional rulings. Right. There's a way to make it seem like we don't know what you're talking about. This isn't exactly in the right court. Right. And they pulled that off for a couple of weeks. And even though I realized that was, I don't know what that was like my king, my King Midas voice, I don't know what that voice was, but there was, it was the Monopoly man voice actually, which is very fitting too. Listen, you know, you can just keep doing jurisdictional stuff only for so long and then I think the court had to start doing things that were much more substantive. Right. And that's when we started to get the insanity of facilitate but don't effectuate. Right. Another way of being silly and jargony without in any way being clear. And so I think that we've done this. Slice the salami. Slice the salami. The court trying in some ways to both be the decider while deciding as little as possible. But as you suggested, Mark, I think last week was a big watershed moment when the court pretty much overturned a 90 year old precedent on the shadow docket without explaining it or explaining why. And so I think we're going to see as these emergencies keep crashing on the shore of the court like, you know, marble Palace, I think we're gonna see them more and more unable to render themselves either invisible or inscrutable. And this is in some sense when we talk about, and you and I have been laughing about like, is this a constitutional crisis yet? Is this a constitutional crisis? The constitutional crisis in some sense, at this super meta level happens when the court actually does a thing right when it orders something and the administration says no and we're not there. But I that they can manage their public image and public reputation by continuing to either be incomprehensible or unreadable or jurisdictional. I just don't think they can pull it off much longer and I think at some point rendering themselves irrelevant in this smackdown where the lower courts are doing such a good job of standing up to Trump and then cases get to the Supreme Court and the Supreme Court says purple, purple. We pick purple. It doesn't go on forever, I don't think.
- [23:47]
Mark Joseph Stern
Well, what's wild to me is that so much of what you just described is going to come to a head over the next month, right? That will be June, and the end of June will mark about five months into Trump's four year term. So we've got so much of this ahead of us. We are only at the very beginning and it already feels like one of the most monumental crises for American democracy in our history.
- [24:09]
Ryan Reynolds
John Roberts in the Purple Crayon thank you, Mark.
- [24:11]
Mark Joseph Stern
Thanks, Dalia.
- [24:13]
Ryan Reynolds
Now, before I hand the rest of the show off to Mark, who is about to appear on stage at the WBUR Festival in Boston, a reminder to make sure you're subscribed to Amicus in all the ways for this opinionpalooza season. We'll be bringing you pop up episodes when the biggest decisions drop. Go to slate.com amicusplus to sign up to access full versions of our emergency episodes and to hear all of our episodes ad free and to enjoy unlimited reading@slate.com and don't miss a thing by subscribing to our newsletter. Slate's Legal Brief we'll keep you up to date on the Supreme Court and beyond with a weekly roundup from us here on Amicus and Slate's Jurisprudence Desk's latest articles. That's slate.com legalbrief this podcast is brought to you by Progressive Insurance. Fiscally responsible financial geniuses, monetary magicians. These are things people say about drivers who switch their car insurance to Progressive and save high because Progressive offers discounts for paying in full, owning a home and more. Plus, you can count on their great customer service to help you when you need it. So your dollar goes a long way. Visit progressive.com to see if you could save on car insurance, Progressive Casualty Insurance Company and affiliates. Potential savings will vary. Not available in all states or situations.
- [25:53]
Mark Joseph Stern
This episode is brought to you by Planned Parenthood Federation of America. It's easy to feel power when court decisions continue to chip away at what's left of health care and reproductive rights. Some lawmakers are trying to end abortion access, slash funding people rely on for care, and shut down Planned Parenthood health centers. These attacks only deepen the healthcare crisis they created, putting millions at risk. But here's the Planned Parenthood isn't going anywhere. Planned Parenthood has remained strong for over a century because of supporters like you. With your commitment, Planned Parenthood can keep defending the care people need, whether it's birth control, cancer screenings, abortion, gender affirming care or sex education. Join the fight by donating to support Planned Parenthood today@PlannedParenthood.org defend your support ensures care continues for those who need it most, no matter what. Hello and welcome to this special edition of Amicus, recorded live at the WBUR festival in Boston. And as listeners at home heard at the top of this week's episode, we are entering what we at Slate like to call Opinion Palooza, the final weeks of the Supreme Court term, when the justices issue decisions at a head snapping rate. Why? Because they hate us. And also because the justices are very keen to flee DC on their billionaire buddies private jets. So they dump a bunch of huge opinions in our laps at the last minute. And we, your humble Supreme Court watch, must forego sleep and any semblance of a normal life in the month of June to report on it all, which is near impossible. But that's by design. Then, while the justices live it up on their BFF super yachts, the rest of the country has to deal with the fallout. But this opinion Palooza will be different from the others. It'll be different in part because of the actions of the President of the United States, whose barrage of executive orders continues to result in in frenzied litigation in the lower courts, with an unprecedented number of rulings against the government, prompting the Trump administration to demand emergency relief from the Supreme Court on what we call the shadow docket. It's also going to be different because of the consequences of the Supreme Court's own actions, which constructed the legal reality that paved Trump's path to a second term and justified his ongoing seizure of unlimited executive power. Which brings me to our guest who has been thinking and writing about presidential power, the Constitution, and the executive branch in ways that I don't always agree with, but that always make me think about it more deeply. Judge Sugarman is professor of Law and Harry Elwood Warren scholar at Boston University School of Law. His forthcoming book, tentatively titled A Faithful President the Founder versus the Originalists questions the Roberts Court's historical evidence for its theory of unchecked and unbalanced presidential power. Jed has written numerous historical slash originalist amicus briefs, including cases on presidential power, the emoluments clause. He considers himself an originalist, at least in theory. Jed, welcome to Amicus Live at the WBUR Festival.
- [29:26]
Dahlia Lithwick
Thank you. Great. Thank you so much for having me.
- [29:31]
Mark Joseph Stern
Okay, let's start with the simplest of table setting questions. What in the world is the unitary executive theory?
- [29:39]
Dahlia Lithwick
Great. Well, the unitary executive theory, on one glance at it, is a simplistic truism. I mean, no one thinks there's more than one president, right? So it's clear there's a single president. The question is the unitary really? What they mean is unifying under a critique or rejection of the administrative state. Right. It's to unify all executive power under the President against what conservative originalists reject as what they call an unconstitutional fourth branch of government. That's one origin of it. Okay, so one way to put it is, and I'm paraphrasing Jack Goldsmith's summary of these cases, that the president is an entire branch of government. The president is the executive branch. Everyone in the executive branch works for, is under the control of and is removable by the President.
- [30:30]
Mark Joseph Stern
So I want to get to why that's just wrong as a historical matter. But before we do, can you sort of remind us how the Supreme Court has specifically used this theory to empower Trump? And we only have an hour for this whole event, so maybe sort of, you know, condense it into a couple of highlights or low lights.
- [30:47]
Dahlia Lithwick
Let me do. I'm gonna. I'm gonna summarize it in a big picture way, and then we can go back and double click on these steps. I call this heads I win, tails you lose. Originalism. The heads I win. And in some ways, it is the head of government. It's the crown. It's a first assumption without evidence, in fact contradicted by historical evidence, that the President has explicit, and the key thing is implicit powers from the Constitution. Under an interpretation of what executive power is. It's an assumption that executive power has traditional and even royal meaning. That's the heads I win, right? That's the royal crown. The tails you lose is the step of saying the separation of powers is formal, which is also, as an originalist matter, wrong. But that because there's a formal separation of powers, any power that the president has implicitly or explicitly is unconditionally the president. And this is also against the historical evidence. Okay, so after those first two steps, then the third step is then putting all of that on steroids in Trump versus United States. Okay.
- [31:53]
Mark Joseph Stern
And that's the decision granting Trump sweeping immunity from criminal prosecution.
- [31:57]
Dahlia Lithwick
That's the immunity case. That is. It is totally ungrounded in originalism.
- [32:01]
Mark Joseph Stern
And let's just get into it. Why Tell me.
- [32:04]
Dahlia Lithwick
Okay, sure. So let me double click on all three steps are massive originalist problems. Okay, so the first step. Step is the assumption that executive power implies a whole panoply of prerogatives. Right. So where do they get this from? I'm gonna go back 100 years, almost to the year of a decision called Myers vs United States, where Chief Justice Taft. You might not. Every listener knows Chief Justice Taft because they know of President Taft. So after he's president, he gets nominated as Chief justice and puts a thumb on the scale for presidential power. Maybe he was bitter that he didn't get all of his agenda through because he didn't have enough power. And also behind the scenes, as he's writing this opinion, he's persuading his judicial colleagues who are Southern Democrats, that these checks on the presidency came from an era of radical Republicans who defended emancipation and defended black civil rights. And he uses that to taint these restrictions on the presidency. So he. He's behind the scenes making white supremacist arguments for presidential power. But the argument he makes in that case for removal power is that the executive power implies royal powers. Right? That's royalism. That's the heads. I win. And he has no evidence from the founding that the founders meant for this. He just assumes that executive power. So what you learned in fifth grade turns out to be true. Or AP US History. The revolution was against primarily executive power by the king and by royal governors. There's been no historical evidence that should make anyone doubt that that was a main point of the Republican. That's why it's a Republican era. It's anti royal. Okay, that's step one. Then step two. That more comes about because of the Roberts court before Trump. So just to be clear, this is a case when Obama was president. President. A case in 2010 called Free Enterprise Fund. For the first time, the Supreme Court says that not only does the president have a power to remove, it is indefeasible, which means unconditional by Congress. How do they get there? This is by supercharging separation of powers. It's an assumption, again, without historical evidence, that the separation of powers, though a thing, is a formal thing. So that any Power that the President has, has is unconditional. That Congress can't set conditions like good cause or inefficiency, neglect of duty or malfeasance. Those conditions that would still give the President removal power, but under conditions that violates this manufactured formalist version of separation of powers.
- [34:43]
Mark Joseph Stern
Okay, so I guess before we get to the next step, what you're saying is basically we had for many, many centuries in this country a system where the executive branch was divided. There were checks on the President, there were other executive officials who could not be removed by the President except for sometimes good cause. And that ensured that the President himself was not consolidating too much power, that we remained a democracy without a king, which as you say, was seemingly one of the goals of the revolution against an actual king that we went through to establish America. America. Then comes Chief Justice Taft and his white supremacist Southern colleagues. And they collectively decide that they don't like the idea of checks within the executive branch. They don't like the idea of checks on the President. They think that the President is an entire branch unto himself. That's right. And he holds 100% of the power. And so they decide to start ripping up all of this sort of historical precedent and traditional that had allowed Congress to impose conditions on the presidency in part to ensure that the President didn't become too powerful and start to look like a king, like the king that we overthrew in the revolution. And so the Supreme Court really. And this is 1920s.
- [35:57]
Dahlia Lithwick
Yes.
- [35:57]
Mark Joseph Stern
The Supreme Court is really kind of undoing a key facet of the American Revolution itself. It seems by going back and sort of reestablishing a king like president who has this, like you say, indefeasible power over the entire executive branch to do whatever he wants, remove anybody he wants, because he is effectively the monarch, not just the elected leader.
- [36:20]
Dahlia Lithwick
That's right.
- [36:21]
Mark Joseph Stern
Fair summary.
- [36:22]
Dahlia Lithwick
A totally fair summary. And I just. Two additional points to that. One is what I mean by the heads I win, tails you lose. Is that when it's convenient, the Supreme Court will just cite English history and practice like monarchy. Yeah, but the tails you lose is an assumption that the founders were rejected. A hundred year tradition that led into the American Revolution of legislative supremacy, or at least legislative primacy. They assume without evidence, the flip side, that Americans were rejecting English systems and English practices. You can't just assume one and assume the other. You need evidence. That's one thing. The second thing is just to piggyback on what you were saying, that this goes all the way back to the founding. A number of historians, I'm part of, let's say a half dozen to 10 historians who in the past decade have just been digging into these assumptions. We keep finding overwhelming evidence that this goes all the way back to the convention, the ratification debates and the first Congress. This was disunitary. There was a separation of executive power from the beginning.
- [37:25]
Mark Joseph Stern
And just a little side quest here. When you present all of this evidence to the Supreme Court saying your theory is wrong, your history is wrong, you don't have the tradition right here is hard proof that you've botched it. This. What has the Supreme Court's response been?
- [37:42]
Dahlia Lithwick
Justice Kagan loves these, loves our evidence in dissent. In dissent. So this was not presented in the case I mentioned in 2010. This was all what some people call the Constitution in exile. What I mean by that is there were a series of theories that conservatives had held onto from the New Deal to the present that were the critique of the New Deal administrative state. So let me rearticulate this just to be clear. Clear. This theory gets recreated in the 1980s. I first found it in Nixon's defense lawyers briefs. Right. So it basically goes away. It goes away from the 1920s, because then 10 years later, not only is this an anti royal move, the separation of executive power then gets recreated or re embraced by the Supreme Court in a unanimous decision by conservative justice businesses in response to totalitarianism. So they see the New Deal and they think we need to make sure that there are checks and balances on executive power. So this is 1935, this is a case you may have heard about called Humphreys Executor, that is part of the administrative state separation from presidential power in the context of the abuse of executive power in the 1930s. Okay, so that's part of the background. But then as we've gone back and prompted by the fact that Chief Justice Roberts in a 5, 4 decision went back and invented history to recreate this unitary executive theory, we've been presenting this evidence and it has been only embraced in dissent. And this is a crisis for originalism. Right. Originalism is supposed to look at historical evidence and take it seriously as opposed to what I call stare errata. Like people have heard of stare decisis. Stare decisis is preserving the decision decisions. The Roberts court in these decisions has engaged in star errata, which means protecting the errors they've made, historical errors, and they just cite those errors like they did last week.
- [39:37]
Mark Joseph Stern
So let's sort of take this down from abstraction to a little bit more concrete of a realm, which is Donald Trump is now the president. Again, as you say, the Roberts Court has been setting the stage to dramatically expand executive authority. One of the few things boxing in Trump, at least in theory, was this decision you mentioned called Humphrey's executor from 1935, where the Supreme Court rolled back its obsession with making the President a king. This was a decision where the spring said, actually, we don't think the President is a monarch. We're going to allow for checks and balances within the executive branch. We're not going to, you know, just elevate him to the kind of level of the crown that Chief Justice Taft wanted to do. And I mean, that decision is reigned supreme until about a week ago. Right. And so maybe sort of walk us through, like the more recent history of the Supreme Court rolling back these precedents, Humphrey's executor.
- [40:33]
Dahlia Lithwick
Right.
- [40:34]
Mark Joseph Stern
And then maybe get us to how Trump versus United States, in a way, kind of put a nail in the coffin.
- [40:38]
Dahlia Lithwick
Right. So the Supreme Court in two decisions was very careful to say we are not calling into question everything. We are doing a narrow thing here. Right. What I mean by that is in 2010, the case I first mentioned about called Free Enterprise Fund, it was a very specific kind of structure that they identified and narrowly overturned. And that was, to put it in simple terms, it was a particular board with two layers of protection that they were under, the SEC that has implicit protection from presidential removal. And a board had explicit protection still just good cause, not denying the president had that power. But it said that those two layers of conditions was too much. But they dropped a footnote. In fact, footnote 10 if you want to keep score at home, where they said, we're not striking down all of these two layers, we're just pinpointing this. I'm paraphrasing. So then 10 years later, with Trump in office, in a case called Sayla Law, they pinpointed another specific structure. These are not like the Fed is a commission of bipartisan staggered commission. Those are the independent agencies that Humphreys protected. They distinguished the cfpb, the Consumer Finance Protection Board that Obama had created that had a single head of an entire agency. And they said that's a problem. So just to be clear, it's not that any prior precedent said that Humphreys and that larger precedent's in trouble. In fact, they said, said, we do not touch Humphreys today. So on paper, the Roberts court has said we are leaving this precedent in place. And regardless of what's said at Federal society conferences, which I attend, about speculating or thinking we have a theory here. The chief executive, President Trump, disregarded that precedent to fire a series of officials.
- [42:32]
Mark Joseph Stern
Okay, so let's. So now let's come to this, right? So Trump is in office. This. He stormed back into office, embracing fully the unitary executive theory, deciding, I am going to use this to my advantage to take total control of the executive branch, because he felt that one of the key factors holding him back in his first term were these officials who were sort of leftover from the Obama administration, who maybe hemmed in his agenda a little bit. So Trump fires a member of the National Labor Relations Board. He fires a member of the Merit Systems Protection Board, agencies that protect unions, agencies that protect federal workers, because he basically paralyzes these agencies, takes total control over them, and does so illegally. Like, just to be totally clear, Congress said he could not do that. Congress enacted laws saying, you cannot fire these people without good cause. He fired them without good cause. Anyway, that was lawless.
- [43:27]
Dahlia Lithwick
So I'll even be more precise about that. After that, he fires commissioners who are part of the Federal Trade Commission. Humphrey's executor was about the Federal Trade Commission. So we don't have to speculate about what other commissions are protected. So in defiance of both the first branch of government, Congress, and in defiance of the third branch of government, the courts and their precedents, he fires those officials on his own. And I'd say it's lawless because he was disregarding judicial decisions. And let me just note, this is a particular motion. Like, how about Roberts Court? Let's read the room. Like, let's not lose the plot here. This moment is the time where there is so much question about whether this president is faithfully executing the office and is obeying precedents. And now the Roberts court is saying, oh, these people you fired when it was lawless. We will retroactively green light. And we know where that leads for someone like Donald Trump.
- [44:26]
Mark Joseph Stern
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Dahlia Lithwick
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- [46:01]
Mark Joseph Stern
Get started@vanta.com and we're back. Amicus is live at the WBUR Festival in Boston and our guest is Boston University School of Law Professor Jed Shukrona Sugarman. So just to pick up on what you said before the break, Trump fired these individuals. They're not allowed to be fired, but the Supreme Court allows him to do it anyway. And that's what happened just last week. And so now we have essentially the first unitary executive maybe in history. Trump has taken advantage of the Supreme Court's latitude and generosity and beneficence, and they've just rewarded him for flagrantly breaking the law.
- [46:40]
Dahlia Lithwick
That's right. And this is not just me. I mean, Justice Kagan puts this in her dissent in this remarkable case. This was not a case that was on the docket. This is what is either called, I think the shadow docket is one way to understand it. Professor Dan Epps calls this the lightning docket. And these are cases that happen out of one kind of emergency or the other. As opposed to Covid, which was an external emergency. The emergency is Donald Trump. Right. So these firings did not proceed by normal legal practice practice. These cases came up because lower courts said, let's pause here. We have this. And let me just say it again. It's a uni. This Humphreys executive precedent is a unanimous precedent from a majority conservative court. And instead of waiting for briefing on this, the Supreme Court then reaches out and overturns the judicious stays when nothing huge is at stake. There's no emergency in whether these, these commissioners stay in office for another nine Months. All right, so they reached out. And why did they do this? I'm gonna make a connection here between the way other legal actors like the law firms that are pre capitulating to Trump. That's kind of what the Roberts court did. It did not have to do this move. Certainly. And I'll say this, I am an originalist in theory. My originalism in theory is being tested by the pseudo originalism and impetuous injudicious moves of the Roberts court. Because I think what they were doing is trying to split the baby. King Solomon only threatened to split the baby, knowing that splitting the baby, neither mother nor baby is happy when you actually split the baby. But that's what the Roberts court did. They split the baby by cutting loose the rest of the administrative state that they don't like because they wanted a way to publish with a way to get Trump to buy it, the protection of the Federal Reserve and the protection of the capitalist version of the non unitary executive.
- [48:36]
Mark Joseph Stern
So you're getting to what's maybe the most bizarre feature of this decision. And there are many bizarre features. The Supreme Court essentially overturned a 90 year precedent on the shadow docket. Didn't have briefing, didn't have oral arguments, just said, we're not going to protect these people from an illegal removal, rewarding Trump for breaking the law.
- [48:50]
Dahlia Lithwick
That's right.
- [48:51]
Mark Joseph Stern
But then, while seemingly embracing the unitary executive theory, randomly established a carve out for the Federal Reserve saying that, yeah, okay, Trump can fire all these other people, but he can't fire the chairman of the Federal Reserve or members of the Federal Reserve Board of Governors.
- [49:07]
Dahlia Lithwick
Because why exactly, I don't know. It is. This decision on the shadow slash lightning docket was four paragraphs. Those four paragraphs were really just two sentences. The one sentence that was at the leading opinion was the heads I win argument that I was describing before. Because the President has the executive power, comma, the president must have the power to remove. That is giant question begging like that means like you're assuming that the executive power that includes the power to remove, that is. And if that's true, why isn't that also true about the Federal Reserve's executive power? So this is the sentence that comes up later. I've just pulled it out because it's just so bonkers. This is the sentence. The Federal Reserve is a uniquely structured quasi private entity that follows in the distinct historical tradition of the first and Second Banks of the United States. Citing their own case that didn't say any of that five years ago. They cite say the law, not just say the law. They cite a footnote keeping score at home. That's a footnote. Number eight, that doesn't say any of that. So not only is the Roberts Court, court, which claims to be originalist, not citing any historical evidence, not citing any historical article for this proposition, which turns out to be wrong, they're not even good presidential lawyers because their footnote doesn't support this. So just one more beat on this is the Federal Reserve is not quasi private. The Federal Reserve Board, though it has regional banks that are quasi private, the Federal Reserve Board is public and engages in public executive power. So it's false as a matter of 2025, but it's also false as a matter of its description of the first and Second bank, because those were private. And let me just say one more thing. An originalist will tell you, right. Who's serious about the history? The first bank was a private actor that exercised executive power, which by itself is a contradiction. This Robert's Court, in this sloppy four paragraph opinion, contradicted their own theory because they just told you, without meaning to, it is okay for private actors to exercise executive power. That contradicts the claim that the President holds all of the executive power.
- [51:25]
Mark Joseph Stern
And also their reasoning is almost a tautology. And they say the Federal Reserve has a unique structure and a distinct history. Doesn't every agency have a unique structure and a distinct history?
- [51:36]
Dahlia Lithwick
Totally.
- [51:36]
Mark Joseph Stern
How does that give us any kind of historical basis for carving out the Fed from Trump's reign of terror over every other independent agency?
- [51:44]
Dahlia Lithwick
So first, I just want to say people should go back and listen to your interview immediately after this case with Dalia. You made that point.
- [51:50]
Mark Joseph Stern
I was so incandescent that I don't know if I was really lucid in that description. So I'm trying to give it another pass. Now.
- [51:58]
Dahlia Lithwick
I will say incandescent was more, when we say, like more light than heat. Yeah, that's a good thing.
- [52:03]
Mark Joseph Stern
Well, you wouldn't accept this on a ninth grader's history.
- [52:06]
Dahlia Lithwick
That's correct.
- [52:07]
Mark Joseph Stern
But we're getting this slop fed to us from the United States Supreme Court and we're supposed to pretend that they're still doing law. And for people in our position, it's increasingly difficult to uphold that pretense with decisions like this.
- [52:19]
Dahlia Lithwick
So let me say two things. One is I think you're right that different commissions have different structures. In this case, this is really wrong as a matter of administrative history. History. The Federal Reserve was built. I've done this work. Other people have done this work too. The nonpartisan staggered commission is a structure that Humphrey's executor approved of, not because the FTC and the Fed were both built on that structure in the same two year period on prior models. So it is actually quite false to say that there was something particularly unique about the structure. But let me say one more thing about that history point. I, as an originalist, am increasingly feeling embarrassed. I mean, maybe I've always, maybe there's always a level of embarrassment with what originalism looks like in practice, but the history in this case is so clear and overwhelming that it is now, I think, an embarrassment because the Roberts Court needs to remember that people read, right, people will read the dissents, people can read our articles. And it delegitimizes the entire Roberts Court and the rule of law, law for the Roberts Court to do what it's doing.
- [53:27]
Mark Joseph Stern
So I feel like we could go on for ages about all of the history that's made up and fake and all of this slop. But I want to sort of raise like a practical point, which is of all the times in history for the Supreme Court to be embracing essentially an unlimited vision of executive power where the President just has dictatorial control over the entire executive branch, where there are no more independent agencies, where he can fire members of the FTC and weaponize it for his own part as an agenda, Whatever, whatever. This is the last president you would ever want to hand that power to. Maybe Richard Nixon is a competitor, right? But like, this is just the last guy who, I think anybody who cares about American democracy would want to hand over the keys to an unrestrained executive branch. And so do you think that the Court is doing this because they love Trump and want to crown him King Donald? Do you think the Court is doing, doing this because they have a majority now, so they're just gonna smuggle it through and get it done while they can and let the chips fall where they may. Why is this happening now under one of the least restrained, least responsible, least civic minded presidents that we've had in American history?
- [54:35]
Dahlia Lithwick
So I don't think they are doing this for Trump. I think they are bargaining in the shadow of Trump. They worry about Trump, but they are more ideologically opposed to the New Deal administrative state. And let me just say, like, this is like this opinion where they bend over backwards to invent bad history to protect the Federal Reserve. They're showing you the money, and by that I mean showing you their right wing ideological commitment to big business conservatism. That's What I'm saying about where this theory gets revived, the theory gets revived in the Reagan administration as part of a deregulatory agenda against the administrative state. And though Trump worries that them, and perplexingly, in a time of tariffs that are also destroying the market, this is also a bizarre time for them to be. And they're revealing just how much their ideological blinders blind them to the danger of Trump to democracy, but also the danger of Trump to liberal capitalism. I mean, I mean, I'm sort of a legal conservative, but I'm not a capitalist conservative. But if I were a capitalist conservative, I would be looking at this moment and say now is the time to look back at the founders and understand that when they designed the treasury and different financial institutions, Madison proposed an independent comptroller, the founders in the first Congress, they created a sinking fund because they knew they couldn't trust any singular executive power. It's not just worrying about Trump today, it's that the founders had this worry and concern about executive power from their time and the present. It is being a good originalist to say Trump is the danger the founders foresaw. And these are the rules the founders and past Supreme Court set against this particular danger. And they are so pro Wall street that they can't even see that Trump is a danger to Wall Street.
- [56:22]
Mark Joseph Stern
Well, except that that's why they carved out the Federal Reserve from Trump's reign though, right? I mean.
- [56:27]
Dahlia Lithwick
Right.
- [56:28]
Mark Joseph Stern
They're savvy enough to realize that if Trump takes control of the Federal Reserve, all of our 401 1ks are going to be in the toilet by 5pm I mean, just to sort of draw this out, why the Fed carve out, because then Trump gets to fire Jay Powell and start, you know, slashing rates and we're going to have Weimar Republic style inflation and it's going to be a disaster. And they know that and we know that. And so they carve out the Fed so that Trump doesn't get his greasy little hands around that. But they give him control over these other agencies because, oh, those agencies protect unions, they guard against monopolies and corporate power, they protect federal workers. And the conservatives don't want those protections to exist. They want protections for Wall Street. They don't want protections for everyone else. Do you think that's fair?
- [57:10]
Dahlia Lithwick
I think that's fair. And let me connect the dots to I think what we've been talking about too, which is that the legal establishment can't grok, the legal establishment can't understand the threat of Trump that they think they can make a deal. This is just the mindset of elite lawyers right now. They think that they can make deals and bargains with Trump. And they have ignored all of Trump's history where every deal is a deal he can break. So law firms pre capitulate to Trump, thinking that, oh, he'll stick to these deals. Universities pre capitulate and acquiesce to Trump, thinking that Trump will stick to the deal and move on. So what is the Roberts court doing when they split the baby? They think, oh, let's Trump will only listen if we make a deal. We are going to pre acquiesce. We're gonna acquiesce to Trump's lawless firings, thinking that will preserve our good graces. Roberts got embarrassed at the State of the Union when Trump turns to him and says something like, thank you, I won't forget it. That should have been a moment where Roberts says, my legitimacy is in the tank and I need to stand up. Instead, he falls in line with the law firms and says, we are going to pre capitulate on these firings things and we'll make a deal. You know, this is the art of the deal with the devil, and it never works out.
- [58:22]
Mark Joseph Stern
I just sort of want to draw out something there, too. It's something Dolly and I have been discussing. It seems like the court thinks it can bless Trump's violations of the law when those violations coincide with the court's own agenda. Dismantle the New Deal? Check. Tear down the administrative state? Check. Kill protections for unions and federal workers. Absolutely. And then the court thinks that it can draw the line and enforce the law. When Trump goes too far and presses in a direction the court doesn't like, summary deportation of migrants without due process, they say, whoa, whoa, whoa, that seems a little too fascist even for us. We're not going to let that one go through without a little more due process or, oh, but you can't fire Jay Powell, chairman of the Fed, because then we won't be able to pay full freight for our kids to go to Harvard or wherever they'll go now. Liberty University, I don't know. And it seems to me, I mean, you say the art of the deal with the devil. I think that's like, gotta be true. That. Then what happens when Trump does fire Jay Powell? What happens when Trump does summarily deport migrants without due process and the Supreme Court tries to draw the line and says, whoa, whoa, whoa, you can't do that. They've already set the precedent of blessing his egregious violations of the law. They have already shown that they will accept and embrace his violation of, you know, 90 year old precedent, federal statutes. All of these things that they happen to dislike. So why would he pay attention to them and heed them and abide by their constraints when they decide to draw the line and he doesn't want to listen to them?
- [59:52]
Dahlia Lithwick
That's exactly right. And let me also point out that this is also where Trump versus United States comes into play.
- [59:57]
Mark Joseph Stern
Okay, well this is something I want to yell at you about though, because, well, you.
- [60:01]
Dahlia Lithwick
But wait, can I just, can I make the point and then yell at me. Okay, which, which is the Federal Reserve protection. It's not a total protection. It is again, good cause. So all the Supreme Court has said is that the Federal Reserve is a carve out that the President has to give. Cause keep in mind, Trump didn't even attempt. I mean, this was the power play. Trump is like, I want this to be the fight the culture war against the elites. I want to flex my alpha muscles. And I really mean, like there is a kind of, you know, gender performance of all of this where I don't want to even give a patina of good cause. But when the Supreme Court does the carve out for the Fed, on your point, what happens when Trump says, okay, you carved out the Fed that I need good cause. My good cause is the Fed is tanking my tariffs or the Fed is tanking real Americans economy. That's my good cause. Dare challenge my good cause. And that's where Trump versus United States comes in. Because. Because that's the third step. Which is, that's where it says that despite the fact that the Constitution has in it two faithful execution clauses, the President takes an oath to faithfully execute the office and the President has a duty to take care that the laws be faithfully executed. That is not just a nod to God. That's not just religious symbolism. As much as I love religious symbolism. Right. That's actual law. Right. And that's where the Supreme Court has ignored the notion that the President has to show good faith and you can't interrogate the President's motives. That means that when Trump does that, if he wants to fire Jay Powell, the head of the Fed, he can simply cite Trump versus United States. Again, as you've shown, they keep citing this as a get out of jail free card. It also is a get out of law free card. And that's where this is going.
- [61:45]
Mark Joseph Stern
Okay, so this is why I wanna yell at you A little bit though, because I agree with you, of course, course. What you just said about Trump versus the United States, again, this is the criminal immunity decision from 2024 that essentially thwarted Special Counsel Jack Smith's prosecution of Trump. Terrible decision, really. Roberts used it to smuggle in so many of these ideas about the unitary executive that we're talking about. Right. Because in order to let Trump off the hook for his crimes during and after the 2020 election, Roberts had to kind of embrace this dark vision of an all powerful president who could wield the tools of his office for corruption and self dealing and that it would still be totally immune from legal scrutiny and even from congressional regulation. But you said like less than 10 minutes ago, you don't think that these justices, the justices who joined Trump versus the United States are doing this with the specific desire to empower Trump. And I guess like my question is, are you sure about that, Jed? Because if you read Trump vs United States, United States, and I guess I have mixed feelings about this too. I don't think that they, any of them knew he would go quite this far. But if you read Trump vs United States, it kind of reads to me, especially in light of what's happened over the last five months, like, like really setting the table for Trump to come in and just absolutely destroy all remaining checks on his power in a way that vindicates the most extreme and dangerous visions of the Unitarian executive theory.
- [63:11]
Dahlia Lithwick
I think they've been on this track for it. I'm not giving them credit for being originalists. They're being, they're being pseudo originalists and they would get a one on the AP US Exam. Okay. So I think they are ideologically motivated and I'm talking about faithful execution. I think it's clear that they've had an agenda since the 1980s and I think there are several agendas here. One of them, now keep in mind Nixon's lawyers cited these like the violent vibe. These are like Article 2 vibes. My colleague Christine Chabot has that phrase. So what was that about? That was in the midst of Watergate. Most Americans lessons of Watergate is that presidential corruption is bad. I think there is a cadre of Republican lawyers who cut their teeth. Scalia was in that holdover Nixon administration and Ford when he was cutting his teeth as a conservative lawyer. Their lesson from Watergate is congressional investigations are bad. Okay, so that's, I think there is a revisionist history or a certain wrong historical lessons that they learned because they're so ideologically in favor of presidential power. From the Cold War. I think they believe that if you know something about the Cold War was undermined if you didn't have total presidential power. Most of the unitary executive advocates, many of them are national security experts. And so there is a military industrial complex agenda here. There is a culture war agenda. There is an assumption that the president is more in touch with real America. I say in scare quotes and about, you know, religious and cultural conservatism compared to the fourth branch or the deep state. I think it's over determined why right wing evangelical cold war conservatives are are ideologically in favor of presidential power. I think all of that came together in Trump versus United States.
- [65:01]
Mark Joseph Stern
So certainly these justices and these lawyers don't like the deep state, they don't like the administrative state, they don't like the fourth branch, whatever. It also seems like they don't care much for Congress. I mean, what we're talking about when we're talking about independent agencies, when we're talking about protections against firing, we're just talking about federal statutes enacted by our representatives in Congress to try to structure the executive branch in a way that doesn't leave lead us straight to a dictatorship. And the fact that the court just a week ago and in so many other cases would blow past Congress's handiwork there with a wave to utterly bogus history suggests that they don't view Congress as a co equal branch. They really seem to view the presidency as the apex of American governance. And Congress, you can take it or leave it. The removal protections are really just suggestions. And when they want to crown a king, they get to do it even if if it is King Trump.
- [65:49]
Dahlia Lithwick
Yes. So I love that you use the phrase co equal branch because it turns out other historians that I've been reading in the work on this book have exposed me to something I didn't realize before. The founders never use the phrase co equal branch. About the three branches. There's a reason why they put Article 1 first and they spent so much time on it. It's because they were living in an era of legislative primacy. And part of the reason why there's a faithful execution clause laws is because there was a tradition of executive officers below the king who had to have fealty and faithfully execute legislation and they had to defer to the legislative branch. That is the founder's design was legislative primacy, not co equal branches. So that is how the Roberts court doesn't understand American history. This is an article that I wrote, I co wrote with Jody Schultz that identifies a Historically false narrative where the Roberts court treats the President as primacy, which is wrong.
- [66:48]
Mark Joseph Stern
Yeah. And just to just spell that out a bit more, you're saying there's two faithful execution clauses in the Constitution. They both instruct the President to faithfully execute the law, the law, in part, as enacted by Congress. But what the Supreme Court keeps saying is that actually, that's not what faithful execution means. That it, in fact, it's the whim of the President that he gets to faithfully execute, that if he doesn't like this person at this agency, he gets to fire them. If he doesn't like this modest restriction on his own power, he gets to blow past it. And that counts as faithful execution, even though it defies the will of Congress, even though it might bust a Supreme court precedent from 90 years ago. Because it's what the President wants. And ultimately, that's all that matters. I mean, is that a fair description?
- [67:29]
Dahlia Lithwick
And that's what happened in Trump v. United States, which. And let me just. This isn't just me. Justice Jackson and Justice Sotomayor nailed this. Right. Sotomayor says there is a twisted irony in saying, as the majority does in the immunity case, that the person charged with taking care that the laws be faithfully executed can break the laws with impunity. Jackson wrote after today's ruling, the President must still take care that the laws be faithfully executed. Yet when acting in its official capacity, he has no obligations to follow those same laws himself. Not only is the Roberts court in practice anti originalist, they're anti textualist. You don't have to dig into the history to know that faithful execution of the law is a signal that the President has to follow the law.
- [68:17]
Mark Joseph Stern
So, final question. We hate curtain raisers at amicus. We don't do them. We're not previewing the end of the term. But. But, like, what are you looking for in both the argued cases and the cases on the shadow docket that you think might play into the dynamic we're describing? What is keeping you up at night outside the realm of the specific set of cases we just discussed that the court will soon be deciding that could, you know, radically unsettle the law even further, as inconceivable as that might be.
- [68:44]
Dahlia Lithwick
It's birthright citizenship. I used to think that this birthright citizenship case was in nine know, slam dunk.
- [68:51]
Mark Joseph Stern
Not anymore.
- [68:52]
Dahlia Lithwick
Not. Not after this decision last week. This decision was procedural. On the removals. The case that they heard under birthright citizenship was also procedural. They didn't hear the full case on the substance. But the consequences are enormous. In every district in the country, do people who are citizens of the United States because they were born here under the original intent of the 14th Amendment's birthright, citizens citizenship, do they all have to lawyer up and district by district, including districts where that are rigged or stacked by Trumpers, do they all have to in order to not be deported to Venezuela or and we're talking about.
- [69:31]
Mark Joseph Stern
Infants, and in order for infants to not be stripped of American citizenship and deported to another country they've never stepped foot in, they would have to individually hire lawyers to go argue that they are citizens because this policy is or.
- [69:43]
Dahlia Lithwick
At least in every district, district you'd have to go get and that the so because the stakes in that case are can there be a nationwide injunction? And to be clear, no matter which president has been in power, I have been defending national injunctions because it's crucial for judges in this era to be able to protect people's rights. And that is at stake in this case. And there has been such a backlash, especially amongst conservatives, against nationwide injunctions that protect basic rights that I now would not be shocked. And it's also, it is shocking that after the Supreme Court heard the Trump administration's lawyers say we don't really have to follow precedents, not only old precedents like Wong Kim Ark on birthright citizenship, or new precedents like judges rulings, we can just defy them. That's essentially what the solicitor general said in oral argument. The Roberts court said, okay, okay, that doesn't worry us so much that we should just go ahead and send a green light for disobedience in this next case about the removals. So that's why I'm worried now is that it's obvious that the Roberts court has not read the room and they've lost the plot.
- [70:52]
Mark Joseph Stern
Jed Sugarman is professor of law and Harry Elwood Warren scholar at Boston University School of Law. His forthcoming book, tentatively titled A Faithful the Founders versus the Originalists, questions the Roberts courts historical evidence for its theory of unchecked and unbalanced presidential power. Thank you, Jed.
- [71:12]
Dahlia Lithwick
Thanks, thanks. Thanks everyone. And thanks, Mark, for having me. I appreciate it.
- [71:19]
Mark Joseph Stern
And that is a wrap. Thank you so much for listening. Thank you so much for your letters and questions. You can keep in touch@amicuslate.com or you can find us@facebook.com amicuspol for those of you who couldn't join us in Boston, Dalia and I taped a Rock Em Sock Em Opinion Palooza bonus episode if you want to hear that, you're going to want to subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or visit slate.comamicus+ to get access wherever you listen. That episode is available for you to listen to right now. We'll see you there and make sure you subscribe to our new so you can stay up to date on the Supreme Court and beyond with a weekly roundup from us here on Amicus and the Jurisprudence Desk's latest articles. Go to slate.com legalbrief to sign up for that. There are links to all these things in the show. Notes Sara Burningham is Amicus's Senior producer. Our producer is Patrick Fort, Hillary Fry is Slate's Editor in chief, Susan Matthews is Executive editor and Ben Richmond is our senior Director of Operations. Thanks to Katie Rayford, Slate's Director of Media Relations, for her work on this special episode. Extra special thanks to Steven Davey at CitySpace and the Good folks at the WVUR Festival for hosting us. We'll be back with another episode of Amicus next week. Until then, take care.
- [72:54]
Ryan Reynolds
Close your eyes. Visualize your appliances and home systems Protected.
- [72:59]
Dahlia Lithwick
Covered Repairs and replacements taken care of Washers, dryers, AC units. Now say it with me. American Home Shield Warranty American Home Shield don't worry, be warranty for 20% off our plans. Visit ahs.com listen see ahs.com contracts for coverage details including limit amounts, fees, limitations and exclusions.
- [73:22]
Mark Joseph Stern
I'm Leon Naifak and I'm the host.
- [73:24]
Dahlia Lithwick
Of Slow Burn Watergate.
- [73:26]
Mark Joseph Stern
Before I started working on this show.
- [73:28]
Dahlia Lithwick
Everything I knew about Watergate came from.
- [73:30]
Mark Joseph Stern
The movie all the President's Men.
- [73:32]
Ryan Reynolds
Do you remember how it ends?
- [73:34]
Dahlia Lithwick
Woodward and Bernstein are sitting at their typewriters, clacking away. And then there's this rapid montage of.
- [73:38]
Mark Joseph Stern
Newspaper stories about campaign aides and White House officials getting convicted of crime.
- [73:43]
Dahlia Lithwick
About audio tapes coming out that prove Nixon's involvement in the COVID up. The last story we see is Nixon resigns. It takes a little over a minute in the movie. In real life, it took about two years.
- [73:56]
Ryan Reynolds
Five men were arrested early Saturday while trying to install eavesdropping equipment.
- [74:01]
Mark Joseph Stern
It's known as the Watergate Incident.
- [74:02]
Dahlia Lithwick
What was it like to experience those.
- [74:04]
Mark Joseph Stern
Two years in real time?
- [74:06]
Dahlia Lithwick
What were people thinking and feeling as.
- [74:08]
Mark Joseph Stern
The break in a Democratic Party headquarters went from a weird little caper to.
- [74:12]
Dahlia Lithwick
A constitutional crisis that brought down the President?
- [74:15]
Mark Joseph Stern
The downfall of Richard Nixon was stranger.
- [74:17]
Dahlia Lithwick
Wilder, and more exciting than you can imagine. Over the course of eight episodes, this.
- [74:21]
Mark Joseph Stern
Show is going to capture what it.
- [74:22]
Dahlia Lithwick
Was like to live through the greatest.
- [74:24]
Mark Joseph Stern
Political scandal of the 20th century.
- [74:26]
Dahlia Lithwick
With today's headlines once again full of corruption, collusion and dirty tricks, it's time.
- [74:31]
Mark Joseph Stern
For another look at the gate that started it all. Subscribe to Slow Burn now. Wherever you get your podcasts.