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

Episode Summary: "This End Of Term At SCOTUS Is Unlike Any Other in History"

Release Date: May 31, 2025

Introduction: A Historic Supreme Court Term

As the Supreme Court term draws to a close, Dahlia Lithwick and host Mark Joseph Stern delve into why this particular end-of-term is unprecedented. The episode, recorded live at the WBUR Festival in Boston, sets the stage for what Slate refers to as "Opinion Palooza"—a period characterized by an intense flurry of significant Supreme Court decisions.

Shadow Docket vs. Merits Docket: The Increasing Influence of Emergency Decisions

Mark Joseph Stern (00:52) highlights the dual nature of the Supreme Court's workload:

"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."

The discussion emphasizes the burgeoning importance of the shadow docket, where the Court issues emergency orders without full briefing or argument, often bypassing traditional judicial scrutiny. This surge in shadow docket cases poses challenges for legal analysts and underscores a shift in how the Court operates.

Unitary Executive Theory: Redefining Presidential Power

Dahlia Lithwick (29:26) introduces the unitary executive theory, a legal doctrine asserting that the President holds unified control over the executive branch. This theory challenges the traditional checks and balances envisioned by the Founding Fathers.

Mark Joseph Stern (35:56) summarizes the implications:

"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..."

Key Cases Shaping the Term

Several pivotal cases are discussed, each with significant implications:

1. United States vs. Skremetti (03:30): Addresses whether states can ban gender-affirming care for minors.
2. Mahmoud v. Taylor (03:30): Questions if religious parents can veto LGBTQ books in public schools.
3. Racial Gerrymandering Cases (03:30): Louisiana vs. Calais and Robinson vs. Calais, focusing on the redrawing of congressional districts to diminish majority-black districts.
4. Medina vs. Planned Parenthood Atlantic (03:30): Examines if states can defund Planned Parenthood by withdrawing Medicaid eligibility due to some clinics providing abortions.
5. Smith and Wesson vs. Mexico (03:30): Considers if Mexico can sue American gun companies for cross-border gun proliferation.
6. Free Speech Coalition v. Paxton (03:30): Discusses age verification requirements for porn sites.
7. Ames v. Ohio Department of Youth Services (03:30): Explores issues surrounding reverse discrimination under Title VII and the storage of nuclear waste.

Mark (05:31) elaborates on the shadow docket, noting:

"The shadow docket is not even a shadow docket. It is a flashing red siren docket."

Emergency Docket: A Rising Tide of Cases

The episode underscores the alarming frequency of emergency cases filed by the Trump administration (06:29), with over 30 merits cases and numerous shadow docket cases challenging various aspects of governance and policy.

Impact on Lower Courts and Judicial Independence

Mark Joseph Stern (13:26) expresses concern over the strain on lower courts:

"You have days, maybe weeks, to issue incredibly important, sweeping judgments on often unprecedented legal disputes."

The Supreme Court's intermittent support and criticism of lower courts exacerbate tensions, particularly when rulings appear to favor or undermine executive actions without consistent legal grounding.

Jed Sugarman’s Insights: History and Originalism Under Scrutiny

Guest Jed Sugarman (29:26) provides a critical analysis of the Roberts Court's approach to presidential power. He traces the unitary executive theory's roots and examines its deviation from historical and originalist principles.

Dahlia Lithwick (37:24) challenges the Court's historical interpretations:

"The unitary executive theory... is totally ungrounded in originalism."

Sugarman elaborates on the Court's strategies (40:33), particularly in cases like Free Enterprise Fund (2010) and Sayla Law, showcasing how the Court has selectively overturned precedents to bolster executive authority.

Supreme Court’s Legitimacy and Public Perception

The legitimacy of the Supreme Court is increasingly questioned as decisions appear ideologically driven rather than rooted in legal tradition. Dahlia Lithwick (52:06) expresses embarrassment over the Court's departure from true originalism:

"The Roberts Court needs to remember that people read, right, people will read our dissents, people can read our articles."

Mark Joseph Stern (60:00) highlights the Court's inconsistent stance on executive power, particularly in the context of Trump vs. United States, where the Court granted unprecedented presidential immunity (63:11):

"Roberts used it to smuggle in so many of these ideas about the unitary executive..."

Birthright Citizenship: The Next Battleground

Looking ahead, Dahlia Lithwick (68:44) points to the looming case on birthright citizenship, expressing concern over the potential for widespread legal confusion and the erosion of established constitutional rights.

Conclusion: A Constitutional Crisis in the Making

As the episode wraps up, both Dahlia and Mark emphasize the gravity of the Supreme Court's recent trajectory. The confluence of an emboldened executive branch, a shadow docket inundated with emergency cases, and the erosion of judicial independence points toward a profound constitutional crisis. The decisions made in these final weeks could have lasting repercussions for American democracy and the balance of powers.

Notable Quotes:

• Mark Joseph Stern (05:31): "The shadow docket is not even a shadow docket. It is a flashing red siren docket."

• Dahlia Lithwick (37:24): "The unitary executive theory... is totally ungrounded in originalism."

• Mark Joseph Stern (63:11): "Roberts used it to smuggle in so many of these ideas about the unitary executive..."

Key Takeaways:

• Opinion Palooza marks a period of unprecedented Supreme Court activity, characterized by a surge in both merits and shadow docket cases.

• The unitary executive theory is being increasingly adopted, redefining presidential authority and diminishing traditional checks and balances.

• Recent Supreme Court decisions, such as Trump vs. United States, signal a departure from originalist principles, raising concerns about judicial legitimacy and the erosion of democratic safeguards.

• The shadow docket poses significant challenges, enabling the Court to make impactful decisions without comprehensive legal procedures, thereby destabilizing the legal landscape.

• Upcoming cases, particularly on birthright citizenship, are poised to further unsettle established constitutional norms, potentially leading to widespread legal and societal implications.

This episode of Amicus underscores a critical juncture in American jurisprudence, where historical precedents and constitutional principles are being reevaluated under the pressures of contemporary political dynamics.